id
int64 1
1.1k
| input_prefix
stringlengths 5
151
⌀ | input
stringlengths 354
187k
| output
stringlengths 38
1.6k
|
|---|---|---|---|
604 | Recognition, organisation and leadership of churches and religious communities | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are religious communities and individuals. The applicant communities originally existed and operated lawfully in Hungary as Churches registered by the competent court in conformity with Act no. IV of 1990 (“the 1990 Church Act”). 7. In application no. 70945/11, Magyar Keresztény Mennonita Egyház (Hungarian Christian Mennonite Church [1] ) is a religious community active in Hungary since 1998. Mr J. Izsák-Bács is a Hungarian national who was born in 1959 and lives in Budapest. He is a minister of Magyar Keresztény Mennonita Egyház. 8. In application no. 23611/12, Evangéliumi Szolnoki Gyülekezet Egyház (Evangelical Szolnok Congregation Church) is a religious community active in Hungary since 1998. Mr P.J. Soós is a Hungarian national who was born in 1954 and lives in Budapest. He is a minister of Evangéliumi Szolnoki Gyülekezet Egyház. This applicant community was involved in social activities outsourced by the municipality of Szolnok and had concluded an agreement with the State Treasury on the provision of services for homeless people. In 2011 the Treasury cancelled this agreement and granted the relevant subsidy only until 30 June 2011. As a consequence the applicant had to terminate the corresponding contract with the municipality, but was obliged to continue to perform its social services up to and including July 2011, thereby allegedly sustaining damage in the amount of 691,407 Hungarian forints. 9. In application no. 26998/12, Budapesti Autonóm Gyülekezet (Budapest Autonomous Congregation) is a religious community active in Hungary since 1998. Mr T. Görbicz is a Hungarian national who was born in 1963 and lives in Budapest. He is a minister of Budapesti Autonóm Gyülekezet. 10. In application no. 41150/12, Szim Salom Egyház (Sim Shalom Church) is a religious community active in Hungary since 2004. Mr G.G. Guba is a Hungarian national who was born in 1975 and lives in Budapest. He is a member of Szim Salom Egyház. 11. In application no. 41155/12, Magyar Reform Zsidó Hitközségek Szövetsége Egyház (Alliance of Hungarian Reformed Jewish Communities Church) is a religious community active in Hungary since 2007. Ms L.M. Bruck is a Hungarian national who was born in 1931 and lives in Budapest. She is a member of Magyar Reform Zsidó Hitközségek Szövetsége Egyház. 12. In application no. 41463/12, the European Union for Progressive Judaism is a religious association with its registered office in London. It acts as an umbrella organisation for progressive Jewish congregations in Europe. Szim Salom Egyház (see application no. 41150/12) and Magyar Reform Zsidó Hitközségek Szövetsége Egyház (see application no. 41155/12) are among its members. 13. In application no. 54977/12, Magyarországi Evangéliumi Testvérközösség (Hungarian Evangelical Fellowship) is a religious community active in Hungary since 1981. 14. In application no. 56581/12, Magyarországi Biblia Szól Egyház ( “ The Bible Talks ” Church of Hungary) is a religious community active in Hungary for over twenty years. 15. In application no. 41553/12, the applicants ( ANKH Az Örök Élet Egyháza (ANKH Church of Eternal Life), Árpád Rendjének Jogalapja Tradícionális Egyház (Traditional Church of the Legal Basis of Árpád ’ s Order), Dharmaling Magyarország Buddhista Egyház (Dharmaling Hungary Buddhist Church), Fény Gyermekei Magyar Esszénus Egyház ( “ Children of Light ” Hungarian Essene Church), Mantra Magyarországi Buddhista Egyháza (Mantra Buddhist Church of Hungary), Szangye Menlai Gedün A Gyógyító Buddha Közössége Egyház (Szangye Menlai Gedun, Community of Healing Buddha Church), Univerzum Egyháza (Church of the Universe), Usui Szellemi Iskola Közösség Egyház (Usui Spiritual School Community Church), Út és Erény Közössége Egyház (Community of Way and Virtue Church)) are religious communities active in Hungary since 1999, 2008, 2005, 2001, 2007, 1992, 1998, 2008 and 2007 respectively. 16. On 30 December 2011 Parliament enacted Act no. CCVI of 2011 on the right to freedom of conscience and religion and the legal status of Churches, denominations and religious communities (“the 2011 Church Act”). It entered into force on 1 January 2012 and was subsequently amended on several occasions, most recently on 1 August and 1 September 2013. 17. Apart from the recognised Churches listed in the Appendix to the 2011 Church Act (see paragraph 22 below), all other religious communities previously registered as Churches lost their status as Churches but could continue their activities as associations. If intending to continue as Churches, religious communities were required to apply to Parliament for individual recognition as such. 18. In decision no. 6/2013 (III. 1.), the Constitutional Court found certain provisions of the 2011 Church Act to be unconstitutional and annulled them with retrospective effect. Meanwhile, several applicants filed requests to have the minister responsible register them as Churches, but these applications were refused on the ground that – despite the decision of the Constitutional Court – the 2011 Church Act precluded the registrations requested. 19. After the Constitutional Court ’ s decision, several applicants applied to the National Taxation and Customs Agency seeking to be reissued with the number which is necessary in order to remain entitled to the 1% of income tax which taxpayers may donate to Churches. The National Taxation and Customs Agency suspended the procedure and invited the applicants to initiate a recognition procedure before Parliament. In the applicants ’ submission, this demonstrated further disregard for the Constitutional Court ’ s decision. 20. Several applicants regained their status as Churches pursuant to the Constitutional Court ’ s decision. III. MINUTES OF MEETINGS OF THE PARLIAMENTARY COMMITTEE FOR HUMAN RIGHTS, MINORITY, CIVIL AND RELIGIOUS AFFAIRS 36. The relevant excerpts from the minutes of the meeting of 10 February 2012 read as follows : “CHAIRMAN [Dr T. LUKÁCS (KDNP – Christian Democratic People ’ s Party)]: ... With the Act adopted by Parliament, freedom of religion is fully guaranteed in Hungary both as an individual and as a communal right. I would add that, in a sense, the freedom to exercise religion in community has even been extended, since in the case of legal persons, today as few as ten members, in contrast to the formerly required one hundred, may exercise their communal rights under the law on associations; associations are also entitled to 1% donations and, if they maintain institutions, the State may enter into contracts with them. Thus, under the European model, ‘ Church ’ status has no direct bearing on freedom of religion. When we adopt this amendment, entities with ‘ Church ’ status will include 97% of the persons who claim to be religious – I will be able to give exact numbers when the 2011 census data have been processed. ... There are eleven countries in Europe where ‘ Church ’ status is granted by a Ministry or State organ or by Parliament. ... We can support this ‘ Church ’ status in good conscience. ... It does not mean, of course, that from a formal point of view other religious communities do not meet the criteria or that in subsequent procedures further Churches cannot be granted this status. ... As has previously been mentioned, it has been a priority concern to grant ‘ Church ’ status to Protestant communities of international importance and to representatives in Hungary of the world religions. ... As I have said, we do not regard this matter as closed once and for all. If in the future someone can prove an important social role, membership numbers or international significance and requests ‘ Church ’ status, we shall proceed according to the procedure prescribed by law. ... The number of entities which, up until 20 December, applied to the Ministry of Public Administration and Justice to maintain their ‘ Church ’ status was eighty-four or eighty-five. ... Of those, thirty-four undoubtedly meet the twenty years ’ registration criterion or have submitted certification from their international organisation demonstrating compliance with the hundred years ’ criterion. From among those, these thirteen have been selected. ... Slovakia amended a similar law last year and recognised a total of fourteen Churches, with ‘ Church ’ status being conferred on 20,000 members. I would add that in England and Sweden there is only one Church [ sic ]. So, in Europe all sorts [of regulations] can be found. ... Mr P. HARRACH (KDNP): ... Let me just add a sentence concerning political decisions. Political decisions are not from the devil, they are manifestations made by the State ’ s leaders on the basis of social considerations. Let us make clear that the issue of authenticity may be examined neither by Parliament nor by any other political organisation, since the assessment of the relationship of God and man or of openness to transcendence does not fall within their competence. The State may only classify religious communities as organisations, that is, it may only deal with their social role. Or, to put it in a very narrow way, with their role as keepers of institutions, since in practical terms this issue concerns subsidies granted to Churches. Freedom of religion is fully safeguarded and unimpaired, and this is guaranteed under the Act, irrespective of whether the exercise of religion takes place within an association or a ‘ Church ’. ... CHAIRMAN: ... In Hungary the freedom of religious communities is fully safeguarded. The granting of ‘ Church ’ status is a separate issue almost everywhere in Europe, where in certain countries like, for example, England and Sweden – commonly referred to as democratic States – only one ‘ Church ’ is recognised. On most of the European continent this two-tier system is applied. ‘ Church ’ status is not a right to be secured to everyone. Under decision no. 8/1993 of the Constitutional Court the legislature may differentiate between Churches on the grounds of their social significance, their historical role, the role they play in the nation and on other grounds. This is exactly what has been done here. Mr P. HARRACH: ... Deciding on the social function of religious communities is, however, a task for Parliament, and it is a Europe-wide practice.” 37. The relevant excerpts from the minutes of the meeting of 13 February 2012 read as follows : “CHAIRMAN: ... Under the adopted Act, obtaining ‘ Church ’ status is not a right. ... The representation in Hungary of the five world religions is secured. ... The Buddhist Churches concluded an agreement with each other which made interpretation much easier for us and a similar intention also exists in the Islamic communities. This is good because we would not be able to analyse Buddhism or Islam in the same depth as they themselves can. ... There are some Churches and religious communities which in the meantime have submitted written statements to the Committee or to the Ministry of Public Administration and Justice stating that they do not wish to obtain Church status. In view of their statements they have not been included in this list. There is another ecclesiastical community which gave a statement to MTI [ the Hungarian news agency] according to which it would not request Church status. However, I cannot accept this as a valid legal statement. I could only accept it if they were to make a statement to similar effect to the Committee or to the Ministry of Public Administration and Justice. ... ... In 1947 legal continuity was interrupted in Hungary. After the entry into force of the 1947 Act and the setting - up of the State Office for Church Affairs, Church affairs changed completely, with Churches being run as dictated by Moscow, complying with the instructions from Moscow. ... We therefore decided to return to the pre-1947 situation and the present list was based on the 1895 Act of Parliament. Of course, with one exception ... this exception being – in a sociological sense, in terms of membership – the third largest Church today. Present-day logic is based on the premise that if we expect the – mostly – Christian Churches not to be persecuted in Europe or other parts of the world, we should grant ‘ Church ’ status to representatives in Hungary of the great world religions. ... ” 38. The relevant excerpts from the minutes of the meeting of 14 February 2012 read as follows : “CHAIRMAN: ... As to compliance with the requirements, I wish to emphasise that in these summary proceedings, where the case files of eighty-five Churches had to be scrutinised, there are, I think, some [ highly questionable] points ... which cannot be [clarified] in the present proceedings ... Therefore it should be clear to everyone that what we wish to attain for the time being is to grant [ ‘ Church ’ status to] authentic domestic representatives of the great world religions, while the authenticity and veracity of their certifications is still to be examined ... ” | The applicants are various religious communities, some of their ministers and some of their members. Prior to the adoption of a new Church Act, which entered into force in January 2012, the religious communities were registered as churches in Hungary and received State funding. Under the new law only a number of recognised churches continued to receive funding. All other religious communities, including the applicants, lost their status as churches but were free to continue their religious activities as associations. Following a decision of the Constitutional Court, which found certain provisions of the new Church Act unconstitutional, religious communities such as the applicants could continue to function and to refer to themselves as churches. However, the law continued to apply in so far as it required the communities to apply to Parliament to be registered as incorporated churches if they wished to regain access to the monetary and fiscal advantages they had previously enjoyed. The applicants complained in particular of their deregistration under the new law and of the discretionary reregistration of churches. |
52 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1969. The second applicant is his daughter; she was born in 2005 (also see paragraph 8 below). They live in Bergfelde, Germany. 6. In July 2003 the first applicant married a Lithuanian citizen, I.R. They lived in Bergfelde, Germany, where their marriage was registered. The spouses also chose German law to be applicable to their marriage. 7. From a previous marriage I.R. had an older son, E.M., who was born in 1992. 8. On 11 January 2005 a daughter, Luisa (the second applicant), was born to the couple in Germany. Parental responsibility was exercised jointly by both parents. In the course of March 2005 the spouses began living separately. The child remained with her mother but maintained frequent contact with her father. At a later stage, divorce proceedings were initiated by the first applicant before the Oranienburg District Court ( Amtsgericht Oranienburg ) in Germany. 9. In May 2005 the second applicant was issued with a German passport. A. Proceedings under the Hague Convention on the Civil Aspects of International Child Abduction 10. On 21 July 2006, the first applicant agreed that his wife should take their daughter to Lithuania for two weeks’ holiday, on condition that she return to Germany by 6 August 2006. 11. When the child and mother did not return to Germany, the first applicant started court proceedings in Germany. An arrest warrant in respect of I.R. was issued by the German authorities. 12. On 14 August 2006 the Oranienburg District Court terminated the mother’s joint custody of their daughter and awarded provisional custody to the applicant until divorce proceedings were completed. The German court also granted the first applicant the exclusive right to decide questions relating to his daughter’s passport. 13. That decision was upheld by the Brandenburg Regional Court ( Oberlandesgericht ) on 11 October 2006, which dismissed an appeal by I.R. 14. On 30 October 2006 the first applicant asked the Klaipėda Regional Court in Lithuania for a permit allowing him to take his daughter back to Germany. He relied on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (see paragraph 145 below), and also on Council Regulation (EC) No. 2201/2003 (also known as “the Brussels II bis Regulation”, hereafter “Regulation (EC) No. 2201/2003”; for the text see paragraph 150 below). 15. On 15 November 2006 the State Child Rights and Adoption Service under the Ministry of Social Security and Labour ( Valstybės vaiko teisių apsaugos ir įvaikinimo tarnyba prie Socialinės apsaugos ir darbo ministerijos; hereafter “the State Child Rights and Adoption Service”), which is also the “Central Authority” within the meaning of Article 53 of Regulation (EC) No. 2201/2003 (see paragraphs 134 and 150 below), announced its conclusion regarding the second applicant’s return. The child care authority noted that the girl had lived in Germany until being taken to Lithuania and that I.R. had kept the child in Lithuania unlawfully. The child care specialists had talked to I.R., but could not persuade her to return the child to Germany and had concluded that the child had not yet reached an age at which it would be reasonable to hear her opinion. The child care specialists noted, on the one hand, that the child had been examined, on I.R.’s initiative, by child development specialists at Vilnius University Hospital, and those specialists had considered that separation of the child from her mother and brother at that moment would negatively affect the girl’s emotional health and potentially cause problems for her development. On the other hand, there was no proof that the first applicant would not be capable of taking care of his daughter or that any other kind of harm might be caused to her upon her return to Germany. The child care specialists also pointed out that, pursuant to Article 11 § 4 of Regulation (EC) No. 2201/2003, “a court cannot refuse to return a child on the basis of Article 13 (b) of the 1980 Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return” (see paragraph 150 below). Accordingly, even if the court were to establish that there was a substantial risk that the girl would sustain psychological harm if returned to Germany, it should in addition verify whether German institutions would take appropriate measures to protect the girl’s interests after her return. It also transpires from the documents in the case that the representatives of the State Child Rights and Adoption Service reiterated that view during the court hearing. 16. I.R., who was represented by a lawyer, V.Š., admitted before the Klaipėda Regional Court that it was definitely not her intention to return to Germany. Neither did she agree that the second applicant should be returned there but argued that her daughter should stay with her in Lithuania because a mother’s care was very important for a child. The first applicant was also present at that hearing, together with a lawyer. 17. By a ruling of 22 December 2006, the Klaipėda Regional Court refused the first applicant’s request. It held that because of the girl’s bond with her mother I.R. and brother E.M., her return to Germany ‒ where her mother might be arrested, even if only temporarily ‒ could cause the child serious psychological harm. As to E.M., he had a psychological ailment and refused to return to Germany, and I.R. could not leave him alone in Lithuania. For the first-instance court, this constituted grounds not to return the second applicant under Article 13 (b) of the Hague Convention. The Klaipėda Regional Court considered that the second applicant’s habitual place of residence, and thus her familiar and safe environment ‒ which was Lithuania ‒ could be changed only if there was a court decision regarding her custody. 18. It transpires from the documents before the court that in January 2007 the second applicant was issued with a permit granting her permanent residence in Lithuania. That same month I.R. declared her daughter’s place of residence to be Klaipėda, Lithuania. 19. On 15 March 2007 the Court of Appeal granted an appeal lodged by the first applicant and quashed the Klaipėda Regional Court’s decision. The Court of Appeal noted that although I.R., who at that stage was represented by a lawyer K.L., had taken her daughter to Lithuania lawfully − because she had the father’s agreement − her choice not to return the child to Germany and instead to keep her in Lithuania was unlawful both under Article 3 of the Hague Convention and under Article 2 § 11 of Regulation (EC) No. 2201/2003. Such unlawful retention of the child in a place which was not her habitual place of residence breached the custody rights of the first applicant, who had taken care of the second applicant before she was taken to Lithuania and who intended to continue taking care of her in future. The first applicant noted that on 2 January 2007 the criminal proceedings against I.R. had been discontinued in Germany and that, since those proceedings had been brought on the basis of a private prosecution, they could not be repeatedly reopened. The Court of Appeal pointed out that since the criminal proceedings instituted against I.R. for unlawful retention of the child had been discontinued in Germany, there was no reason to believe that, if returned to Germany, the child would be separated from her mother. The Court of Appeal also noted that the proceedings in the Lithuanian courts were concerned only with the return of the child, who was being retained unlawfully in Lithuania, and not with questions relating to the child’s custody, such as the possibility of her living with her brother or her mother. This was a principle that likewise had its origins in Article 19 of the Hague Convention (see paragraph 145 below). In fact, as noted in the preamble to the Hague Convention, its aim was to protect children internationally from the harmful effects of their wrongful removal or retention (ibid.). Moreover, there was no reason to doubt that a competent court in Germany would be capable of properly evaluating factual circumstances relating to matters of custody. The Court of Appeal observed that a consequence of unlawful removal was that the person with custody rights lost the possibility of exercising those rights in the child’s place of residence. The child, for her part, was deprived of that person’s care in a place that used to be her habitual place of residence. Accordingly, harm was caused to both the person with custody rights and the child and would continue until a lawful state of affairs was restored. 20. The Court of Appeal also noted that the burden of proof in demonstrating a grave risk that the child’s return would expose her to harm lay with the person who was objecting to the return. In the instant case, although − as noted in the report of the Klaipėda University Pedagogical Faculty social science (psychology) specialists − the return of the second applicant might cause her psychological hardship ( psichologiniai sunkumai ), there was no reason to believe that such hardship would amount to an intolerable situation or exceed the normal distress which the return of a small child to his or her country of origin would cause. Accordingly, there was no reason to apply Article 13 (b) of the Hague Convention. 21. The Court of Appeal ordered I.R. to return her daughter to Germany by 15 April 2007. In the event of her failure to do that, it would be for a Lithuanian bailiff to transfer the girl to her father in Klaipėda and in the presence of the Klaipėda child care authority. 22. Under Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003 (see paragraph 134 below, which also contains the full title of this law), the decision of the Court of Appeal was final, that is to say, not amenable to an appeal on points of law. Under Article 339 of the Code of Civil Procedure (hereinafter “the CCP”), it also became enforceable from the day of its adoption (see paragraph 136 below). 23. On 23 April 2007 the Klaipėda Regional Court, accepting a plea by I.R. that she and her son E.M. needed more time to prepare themselves psychologically for the girl’s return to her father, issued an order suspending enforcement of the Court of Appeal decision. The Klaipėda Regional Court disregarded the first applicant’s pleading that as early as 22 March 2007 he had contacted the child care authorities in Klaipėda and the State Child Rights and Adoption Service with an offer in good faith to help I.R. to execute the Court of Appeal ruling of 15 March 2007, including helping her financially to travel to and stay in Germany during the transfer of the child, but I.R. had rejected those proposals, seeking to delay the execution proceedings and abusing her procedural rights. 24. By a ruling of 4 June 2007 the Court of Appeal quashed the Klaipėda Regional Court’s decision of 23 April 2007. The appellate court noted, on the one hand, that the situation referred to by I.R. – that the second applicant’s return would be harmful for I.R. and for her son E.M. ‒ could last indefinitely. On the other hand, there was no evidence that returning the child to her father within the time-limit set earlier would cause her any harm or not be in her interests, nor had this been the conclusion of the first-instance court. The paramount concern was to protect the interests of the child, who was being held in Lithuania unlawfully, and any delay in executing the court decision for her return ran counter to the Court’s ample case-law concerning States’ positive obligations in this field. 25. According to the documents submitted by the Government, on 18 May 2007 I.R. signed an agreement with the law office of K.Č. and R.B., whereby I.R. agreed to pay 300 Lithuanian litai (LTL) (approximately 87 euros (EUR)) per hour for representation in the case concerning the second applicant’s return to Germany. The lawyers in question took on the obligation to represent I.R. in the Lithuanian courts up to the level of the Supreme Court. B. The bailiff’s attempts to execute the Court of Appeal decision of 15 March 2007 for the second applicant’s return in 2007 26. Given that I.R. had not returned the second applicant within the prescribed time-limit, on 13 June 2007 at the first applicant’s request the Klaipėda Regional Court issued a writ of execution ( vykdomasis raštas ) which stated that “I.R. [was] obliged to return the second applicant to Germany before 15 April 2007 [see paragraph 21 above]. Should the court order for the transfer not be executed before that date, it is for the bailiff to take measures, in accordance with the rules set out in the Code of Civil Procedure, by taking the second applicant from I.R. and transferring the girl in Klaipėda city on a date agreed with the first applicant, and in the presence of the Klaipėda city child care authorities”. 27. In addition, on 9 July 2007 the first applicant presented the bailiff with a letter in which he stated that, in order to protect his daughter’s interests and to protect her from any harm during the transfer process − and also wishing to help I.R. to voluntarily execute the court decision for the girl’s return − he proposed to cover all costs for I.R. and the child related to their travel to Germany. He also proposed that he would provide I.R. with financial support and somewhere to live in Germany until she could find herself a place to live, and would also help her with other organisational matters. The first applicant also presented the bailiff with a document from a private company in Germany which agreed to employ I.R. 28. On 9 July 2007 the bailiff drew up an order ( patvarkymas ), asking I.R. to explain how she envisaged that the court decision could be executed in a friendly way. 29. The first applicant then wrote to the bailiff stating that he would arrive in Lithuania for the transfer, and asked the bailiff to make arrangements for that transfer to take place on 30 July 2007. On that date the bailiff issued the decision that the transfer would take place on 3 August 2007, with the participation of the Klaipėda city child care authorities. However, the bailiff could not subsequently serve that decision on I.R. because she could not be found at either her home address in Klaipėda or her place of work at Klaipėda University nor could she be reached on her telephone. On 3 August 2007 the bailiff announced that a search would be launched for I.R. and the second applicant, and informed the police of this fact. I.R. contacted the bailiff on 5 September 2007, stating that in August she had been on holiday and claiming that she had not been avoiding the bailiff. The bailiff therefore called off the search. On 5 September 2007 he again ordered I.R. to bring the second applicant to Klaipėda city child care authorities’ premises on 12 September for her transfer to the first applicant. 30. As confirmed by the bailiff and also by the signatures of the first applicant, of I.R., and of the representative of the Klaipėda child care authority, I.R. arrived at the meeting on 12 September 2007, but refused to execute the court decision for the second applicant’s transfer, or to disclose her daughter’s whereabouts. The bailiff also noted that the first applicant had asked I.R. to give him the opportunity to communicate with their daughter, but I.R. had refused that request. On the same day, the bailiff announced a police search for the second applicant, and asked the Klaipėda City District Court to decide whether I.R. should be issued with a fine for having ignored the court decision. 31. The court decisions on file also show that on 11 September 2007 the bailiff refused I.R’s request to suspend the execution proceedings, despite I.R.’s submission that separation would be traumatic because of the second applicant’s close family ties to her and to her brother. 32. The Klaipėda Regional Court on 4 December 2007 upheld the Klaipėda City District Court’s decision of 23 October 2007, and underlined that the merits of the question of the second applicant’s return had already been decided by the Court of Appeal ruling of 15 March 2007 (see paragraphs 19-21 above). After the latter decision, I.R.’s attempts to have the merits of the question re ‑ examined − at the stage when the bailiff was executing the court decision − by invoking Article 13 § 1 (b) of the Hague Convention, had no basis in law. The Klaipėda Regional Court also pointed out that on 4 June 2007 the Court of Appeal had already examined the question of whether execution of the decision to return the second applicant could be suspended on the grounds of I.R.’s son’s state of health and his separation from the second applicant, but had dismissed the request as unfounded (see paragraph 24 above). Accordingly, such arguments could not be examined again. 33. I.R. appealed against the bailiff’s decision, but her complaint was dismissed by the Klaipėda City District Court on 23 October 2007. I.R. then lodged a further appeal, to which the first applicant responded that by such actions I.R. was abusing her procedural rights and being dishonest. 34. Afterwards, having received the 22 October 2007 ruling of the Supreme Court’s President ordering suspension of the execution of the Court of Appeal ruling of 15 March 2007 (see paragraph 73 below), on 29 October 2007 the bailiff issued a decision ( patvarkymas ) suspending execution of the second applicant’s return to the first applicant and also halting the search for the second applicant. C. The public interest in the case in Lithuania and State authorities’ and politicians’ comments and other involvement in the matter, as submitted essentially by the applicants 35. The applicants submitted numerous pieces of evidence showing the public interest in their case and the Lithuanian State authorities’ and politicians’ involvement in it, including statements of various officials, official documents of Lithuanian and European Union institutions, and publications in various Lithuanian Government Internet sites and the media. The facts constituting the evidence submitted by the applicants were not challenged by the Government and are also corroborated by the information available from the public sources (see also paragraph 210 below). 36. As noted by the applicants, as early as 6 December 2006 and in a television documentary entitled “ SOS Pagalba ” (translated as “SOS Help”), G.A., who was the director of the Klaipėda child care authority, made the following comments regarding the applicants’ situation (regarding her subsequent position see also paragraph 60 below): “How can a mother be accused of kidnapping her own child? Father and mother must both take care of the child. And if there is a conflict situation in the family, then that can only be resolved in court.” “As a mother I say that this is not a good step to take. I believe that the child has to grow up with his or her mother and stay in contact with the father. This is my opinion.” “This mother is right – it is her child, and we should all make an effort to help her.” “I am asking myself – what abduction? The mother has taken her child along with her. I would do the same, no one could take my child away from me.” 37. According to information published on 5 April 2007 on the Internet site of the Seimas (the Parliament of the Republic of Lithuania), A.L., who was the Chairman of the Seimas Committee on Human Rights, commented that “Lithuania was not ready to defend the rights of Lithuanian citizens who had married foreigners or the rights of their children”. After the investigation which the Committee conducted on the basis of I.R.’s request, the Chairman considered that in the applicants’ case the child care specialists had acted only formally, having failed to evaluate the impact which the return to Germany could have on the second applicant. He also “rhetorically asked”: “the Hague Convention of 1980 and the Council Regulation (EC) No. 2201/2003 formally oblige to return [the second applicant] to her country of origin in order to avoid consequences negative for the child. However, if one would disregard the formal law, what harm could being with a loving mother cause to a two year old child?” According to the information on the Seimas Internet site, the Committee also discussed such questions as the “problem of Lithuania’s international engagements”, the European Union law which led to the situation where “the mothers from eastern Europe countries, after marriage in the West and having given birth there, lose the right to a child, when a man from western Europe turns them out of the family”. The Chairman also considered that there was no institution in Lithuania that would be effective in defending a child’s interests on an international scale. 38. On 7 September 2007 the press also quoted a public statement by V.A.A., a member of the Seimas who belonged to the Homeland Union ( Tėvynės Sąjunga ) political party and who, according to her CV on the Seimas website, had an educational background in music and whose interests included “family politics, children’s rights and human rights ( angažuojasi šeimos politikos, vaiko teisių ir žmogaus teisių srityse )”. She was also a member of the Seimas Committee on Legal Affairs ( Teisės ir teisetvarkos komitetas ) and the Seimas Committee on European Affairs ( Europos reikalų komitetas ). V.A.A. claimed to be “very much concerned” with the conclusions that had been provided by the State Child Rights and Adoption Service as well as its position during the court proceedings regarding the second applicant’s return to Germany (see paragraph 15 above). V.A.A. pointed out that the State Child Rights and Adoption Service was the “Central Authority” under the Hague Convention and under Regulation (EC) No. 2201/2003 and that, pursuant to Article 2 § 3 of the Law on the Implementation of EC Regulation No. 2201/2003, its role was to provide a conclusion for submission to the court hearing the case for a child’s return (see paragraph 134 below). However, her impression was that the State Child Rights and Adoption Service had only formally defended the rights and interests of the second applicant and had essentially supported the arguments of the first applicant, who had asked the courts to order that his daughter be returned to Germany. V.A.A. underlined that the conclusions provided by the State Child Rights and Adoption Service “had influence on ( įtakoja )” court decisions. It was therefore of paramount importance that those conclusions should be “just ( teisingos )”: the State Child Rights and Adoption Service should not only formally rely on the norms of international conventions. In V.A.A.’s view, analysing the factual situation, one could not comprehend how the State Child Rights and Adoption Service could have agreed to the second applicant’s return to Germany, given that before leaving for Lithuania she had lived most of her life with her mother, and had now lived most of her life in Lithuania. The parliamentarian also opined that, since the second applicant had been only one and a half years old when she left Germany, her connection with the environment there had been minimal. In Lithuania, however, she had already established close connections with other members of her (Lithuanian) family and had become used to that environment. The member of the Seimas considered that the second applicant’s return to Germany would thus put the child in an intolerable situation, and would possibly cause irreparable damage to her mental and other development. V.A.A. stated that she had read the conclusion of the State Child Rights and Adoption Service which it had submitted to the court but considered that the Service had not taken the relevant circumstances properly into account and therefore “had not performed its main function and task”, and “in this particular case” had failed “to protect the rights and lawful interests” of the second applicant. V.A.A. thus urged the State Child Rights and Adoption Service to properly carry out its functions when protecting the second applicant’s interests, also pointing out that that institution was overseen by the Ministry of Social Security and Labour. 39. By means of a written request dated 7 September 2007, six members of the Seimas elected in the constituencies of the Klaipėda region or those who stood for parliamentary elections in those constituencies and/or lived there (V.Č., V.G., V.S., A.S., I.Š. and I.Ro.) submitted a written request to the bailiff in charge of executing the Lithuanian court’s order for the transfer of the girl into her father’s custody, asking him to refrain from carrying out that duty. The parliamentarians stated that they intended to petition the President of the Republic and the Minister of Justice, requesting that the girl not be returned to her father. 40. On 9 September 2007 the President of the Republic wrote to the first applicant, stating that he was very much aware of the case, which had attracted wide media attention. However, the President highlighted that he could not exert any influence over the courts or provide any kind of recommendation as to how cases should be decided, for to do so would be unconstitutional. The President also pointed out that, whilst understanding how important a court decision was in the first applicant’s case, he had never expressed his view publicly in order not to breach the principle of the independence of the courts. The President expected that the case would be examined objectively, taking into account the interests and needs of the second applicant. 41. On 21 September 2007, a group of forty-one members of the Seimas, on the initiative of the Seimas Committee on Human Rights, asked the Constitutional Court to examine the question of whether Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003 ‒ pursuant to which no appeal on points of law was possible in cases concerning a child’s return effected under that Regulation (see paragraph 134 below) ‒ contradicted the constitutional principle of the rule of law. 42. In that context, the press also quoted another member of the Seimas Committee on Human Rights, A.Sa., who also signed a petition seeking referral of the question to the Constitutional Court and stated that he did “not understand how such a situation was possible. Maybe the German courts adopt ( priima ) reasonable decisions, but this is a precedent which the Constitutional Court should examine. Lithuania is a member of the European Union, and there are plenty of such marriages. Does that mean that we shall always give in and our children will always be taken away to foreign countries?” 43. The Constitutional Court initially accepted the request for examination but, two years later, in December 2009, it discontinued the proceedings because on 13 November 2008 the Seimas had adopted a new Law on the Implementation of EC Regulation No. 2201/2003, and the former law ceased to be applicable (see paragraph 134 in fine below). 44. According to the Lithuanian news agency ELTA, in September 2007 members of the Liberals’ Movement ( Liberalų Sąjūdis ) political faction in the Seimas asked the President of the Republic to examine the possibility of granting Luisa Rinau Lithuanian citizenship urgently and by way of exception (see paragraph 132 below). 45. According to the report of the Seimas Committee on Human Rights activity for the period 10 September 2007 to 1 February 2008 − approved at the Committee’s meeting of 13 March 2008 − on 10 October 2007, exercising parliamentary oversight as regards the protection of children’s rights in the context of Lithuania’s international agreements, the Committee discussed, inter alia, the question “Regarding the quality of the actions of the child care authorities’ employees and the possibility of providing legal aid for Lithuanian citizens in the German courts”. The Committee considered that the conclusions which the State Child Rights and Adoption Service had presented to the Lithuanian courts regarding the second applicant’s return to her place of origin – Germany – had not reflected accurately the social situation of the second applicant, had not evaluated her connection with her mother and brother, and various other aspects. The Committee considered that such “an inappropriate conclusion” had done “irreparable harm to the interests of the child, and could also influence court decisions in Germany”. The Committee, having taken into account the harm which had been caused by the child care authorities’ formal attitude ( formalus požiūris ) towards the interests of the child, demanded that the Minister of Social Security and Labour (who supervised that child care authority), declare that those employees had not performed their duties correctly and also order the child care authority to submit another conclusion which would fully reflect the social situation of the second applicant, and also evaluate the expert conclusions regarding possible damage to the girl’s mental state should she be returned to Germany. 46. In that context, on 20 September 2007 members of the Liberals’ Movement in the Seimas had met the employees of the State Child Rights and Adoption Service “who had personally taken part in deciding Luisa’s fate”. According to the press article on the internet portal AINA ( Aukštaitijos naujienų ir žinių portalas ) on the same day under the heading “Luisa’s story – an example of Lithuanian institutions’ failure to act ( Luisos istorija – Lietuvos institucijų neveiklumo pavyzdys )”, the members of the Liberals’ Movement political faction had been inquiring what steps the responsible authorities would take so that the second applicant’s story would have a happy ending, and “what they would do to truly help the children of Lithuania in protecting their interests ( ką darys kad realiai padėti Lietuvos vaikams )”. The article quoted G.Š., a member of the Seimas Committee on Human Rights who belonged to the Liberals’ Movement, as having greeted the State Child Rights and Adoption Service employees at that meeting with the statement “My dears, you are wishing to wash off your tainted tunic ( Mielosios, jūs norite nusiplauti savo suteptą mundurą )” and having accused them of lacking patriotism. He was quoted as having said that “the ambivalence, lack of action and lack of simple humanity ( abejingumas, neveiklumas ir paprasčiausio žmogiškumo stygius ) of the State child care and adoption institution makes one angry – whereas that institution should be defending the rights and interests of the child, defending a Lithuanian citizen. We must ascertain whether such employees are fit for their job”. The same article quoted another member of the Liberals’ Movement, D.T., who urged the State Child Rights and Adoption Service employees to put all their efforts into protecting the interests of the girl and asked “how come we are so stubborn as to not comprehend that the link between the mother and the child, responsibility for the well-being of the child, the child’s safety, link to the family and the homeland – as a great virtue – has not changed and never will change?...”. The article also stated that “the Liberals’ Movement faction has asked the President of the Republic to consider whether he could grant Lithuanian citizenship to the daughter of Lithuanian citizen I.R., who was born in Germany, by way of exception and as a matter of particular urgency ( išimties ir ypatingos skubos tvarka )” (also see paragraph 44 above). 47. The Seimas Committee on Human Rights also asked the Ministry of Justice to provide quality legal help to I.R. and to request that the case be moved for examination from the German courts to the Lithuanian courts, “protecting the mother’s right to raise her daughter in Lithuania”. 48. The Committee’s initiative was reported in the media. On 10 October 2007 Internet news portal (www.delfi.lt) quoted the Chairman of the Seimas Committee on Human Rights A.L., who elaborated that “I think the employees of the [Ministry of Social Security and Labour and Ministry of Justice] will obey the ministers’ proposals ( šių ministerijų darbuotojai paklus ministrų siūlymams ), and that the courts will also have the decency ( teismai turės garbingumo ) to reopen this case if the Prosecutor General’s Office asks for the case to be reopened on the grounds that new circumstances have appeared”. The Chairman was also reported as having stated that since March 2007 the Seimas Committee on Human Rights had tried to exert influence that every institution would perform its job properly. He also stated that if within a year the bailiff had not executed the court decision ordering the girl’s transfer, the German courts should transfer the case to the Lithuanian courts to be examined in Lithuania. 49. The same article of 10 October 2007 also quoted the Ombudsman for Children’s Rights, R.Š., who stated: “From the very beginning the position of the Ombudsman’s Office was that the child should be with the mother. Everywhere we talk about a family – three persons, that the mother cannot choose one child. In this situation the children would be separated. Even our laws on child adoption state that if we have brothers or sisters, one should search for adoptive parents so that siblings would not be separated. And here we have a situation when we ourselves in some way are assisting to separate the children. The children should live together – we should search for ways and possibilities for allowing them to remain in Lithuania”. The Ombudsman also pointed out that if I.R. had gone to Germany to be present at the court hearings where the question of custody was being decided [which I.R. had not done], the process would perhaps not be so “painful” now. 50. In both instances – in spring and autumn 2007 (see paragraphs 37, 45, 47 and 48 above) − the Seimas Committee on Human Rights was presided over by A.L., who belonged to the Liberals’ and Centre Union ( Liberalų ir Centro Sąjunga ). In August 2008 I.R. became candidate no. 30 on the list of the Liberals’ and Centre Union in the Seimas election which was to take place in October 2008. 51. On 13 September 2007 V.M., the Chairman of one of political factions in the Seimas, sent a letter to P.B., the Minister of Justice, asking him to pay attention to “the court decisions that had shaken the whole of Lithuania ( sukrėtė visą Lietuvą ) and that had been widely reported in the press”, pursuant to which a minor child was to be taken away from I.R. and against her mother’s will to be sent to a father who lived in Germany. V.M. wrote to the Minister of Justice asking him “to properly ascertain ( visapusiškai išsiaiškinti ) whether the court decisions have been just and lawful, even though it was plain that they contradicted elementary logic and were not humane. If the laws of our country treat such actions [namely court decisions ordering transfer of the second applicant to the first applicant] as lawful, I would ask you to initiate legislative amendments so that similar situations can be avoided in future”. V.M. also stated that “although laws were written by people, and those laws had to serve people, the State could not remain a bystander when because of dramatic circumstances human fates were being broken ( laužomi žmonių likimai ), and children have been suffering”. 52. According to the press statement on 21 September 2007 released by the Ministry of Justice, the Minister of Justice P.B. had asked the State Guaranteed Legal Aid Service in Klaipėda to provide I.R. with free legal aid in so far as this was possible ( pagal galimybes ). 53. The applicants’ story was widely reported in the media, including newspapers printing readers’ opinions. For example, on 21 September 2007, Lietuvos rytas, one of the biggest daily newspapers in Lithuania, published an article “The story of a Klaipėda resident [I.R.] – warning to other Lithuanian women”. Under that headline the daily printed letters containing statements such as “A mother had a moral right to defend herself by any means, even to murder the bailiff, should he attempt to take the child by force. Moral right is above legal right”, “It is unbelievable that Lithuania cannot defend its citizen. What kind of laws, what kind of lawyers? What is the Ministry of Justice doing?”, “A heart-breaking story. Isn’t there anyone who could defend the woman and the child? Lithuanians, wake up, do not remain unmoved, do not be blind followers of the law”. 54. On 26 September 2007 the first applicant wrote to the Ombudsman for Children’s Rights, R.Š. He stated that he wished to settle the question of the second applicant’s return peacefully, and that he did not wish to bring the details of his case into the public domain, in order to protect both the second applicant and her brother, who was ill, and whom the first applicant had taken care of in Germany. The first applicant was therefore particularly disturbed by what had been happening in Lithuanian politics and society regarding his case. He noted, in particular, that members of the Seimas had been exerting pressure on the Lithuanian bailiff not to execute the court decision (see paragraph 39 above). The first applicant wondered whether the Seimas had assumed the powers of the courts, since its politicians − who had not seen the evidentiary material in his case file − had been ignoring court decisions which, all the more so, complied with international law. The first applicant also stated that the politicians had been supporting the exertion of psychological pressure on him and that the Lithuanian newspapers had been printing readers’ letters where he had been demonised and called “a German pig”, “Nazi”, “fascist” and “a criminal”; there had also been public calls for violent action ( susidoroti ) towards him, the court bailiff and the first applicant’s lawyer. He was asking, rhetorically, which of the politicians would take responsibility should something happen? 55. In that letter the first applicant also noted that he had not been able to see his daughter in Lithuania since December 2006, because I.R. had been hiding her. He had still been able to talk to his daughter via the Internet in January and February 2007, but afterwards I.R. had banned that contact as well. He also pointed out that the Lithuanian media had failed to depict his case objectively, since they had not mentioned the international courts’ practice regarding the Hague Convention, which applied equally to fathers and mothers. The first applicant also submitted that most of the expert reports on which I.R. had relied had been prepared by experts from Klaipėda University, where I.R. had worked for a long time (also see paragraph 29 above). He expressed sadness at what had become of the Lithuanian legal system: that international treaties had been signed but not adhered to because to follow them was “inconvenient”; that a father had very few rights in Lithuania; that the politicians had been publicly supporting smear campaigns or being ambivalent towards him. He noted that, if Lithuania had not signed the Hague Convention, his only option would have been to observe helplessly as his daughter became distant from him, but that now he had a right to fight for his daughter. The first applicant expressed hope that the decisions of the Court of Appeal would be respected and executed and that Lithuania would fulfil its obligations under international law. 56. On 15 October 2007 I.R. met P.B., the Minister of Justice of Lithuania. The Minister promised her free legal aid in the proceedings concerning her daughter’s return to Germany. I.R. also stated to the press that “there is a legal possibility that court proceedings regarding the second applicant’s custody might be transferred from Germany to Lithuania. I asked the Minister of Justice to act as intermediary in this matter ( prašiau tarpininkavimo ), but the Minister stated that he could not help. He implied that I myself should do that with the help of a lawyer ( esą tai galiu padaryti aš pati su advokato pagalba ).” 57. By October 2007, almost 35,000 Lithuanian citizens had signed a petition entitled “For Luisa” demanding that the girl not be returned to her father in Germany. The petition referred both to Lithuanian legislation and to the United Nations Convention on the Rights of the Child and argued that it was in the girl’s best interests for her to stay with her mother in a familiar environment in Lithuania. The petition was addressed to the President of the Republic, the Prime Minister, the Speaker of Parliament, the Ombudsman for Children’s Rights and Germany’s ambassador to Lithuania. 58. In that context, in October 2007 I.R. professed in the Lithuanian press that “[I]n our country mother and child are sacred and inseparable. It is unfortunate that this principle is not being followed by the courts ( mūsų šalyje mama ir vaikas yra šventa, nedaloma. Gaila, kad šia nuostata nesivadovauja teismai )”. 59. In October 2007 the press also reported that I.R. had visited the prosecutor’s office in Klaipėda that month, where she had been invited for a conversation. The prosecutor D.P. noted that lawyer G.B. (see paragraph 101 below) had been defending I.R.’s interests at that time. The prosecutor also noted that the prosecutors’ office’s support for I.R. so far “had only been of a moral nature ( kol kas tiktai moralinė )”, but that the complicated matter could possibly be resolved if the laws on dual citizenship were amended. The prosecutor stated that “if the second applicant were to become a Lithuanian citizen, maybe it would be possible to help her somehow. We must explore all possibilities.” 60. In October 2007 the press also quoted G.A., the director of the Klaipėda child care authority, as saying that she had attempted to persuade the first applicant to renounce custody rights in respect of the second applicant but had been unsuccessful. The director stated that the first applicant had been categorical, but that it also appeared that he “genuinely loved his daughter”. 61. On 19 September 2007 the press reported that I.R. would have to hide her daughter not only from her father, but also from Lithuanian police, since the bailiff had undertaken to announce a police search for her (see paragraph 29 above). The press also wrote that “from unofficial sources it is known that in these days I.R. intends to travel to Vilnius, to approach the highest civil servants and politicians, and in this manner fight for the right to bring up her daughter herself”. 62. On 3 June 2008 the Minister of Justice P.B. met I.R. According to the Ministry of Justice press release, that week “the Lithuanian Government approved Lithuania’s position with regard to examining the case under the urgent preliminary ruling procedure of the European Court of Justice” (see paragraph 95 below). The Minister of Justice also stated that it was important to support the doubt raised by the Supreme Court of Lithuania, namely whether Germany in fact had jurisdiction in such a child return case. It was therefore indispensable to clearly establish the intention behind the European Union’s legal norms. 63. On 2 September 2008 − that is to say already after the ruling of the European Court of Justice (hereafter “ECJ”) and the follow-up ruling by the Supreme Court (see, respectively, paragraphs 98-103 and 106 below) − A.L., who was the chairman of the Seimas Committee on Human Rights, replied to the first applicant in writing that the Committee had examined the child care specialists’ conclusions about the relationship between I.R. and her children. According to the Chairman, I.R. was “a mother beyond reproach ( nepriekaištinga motina )”, and the first applicant’s fear about her negative influence on the children had no basis. The Chairman stated that, in the Committee’s view ( mūsų žiniomis ), I.R. could not move to Germany because of her son’s ailment. The Chairman thus suggested that the first applicant should “seriously consider the possibility of moving to Lithuania”, so that the second applicant would not be separated from her mother and brother. D. Endeavours by I.R. and the Lithuanian Prosecutor General to have the Lithuanian court proceedings reopened 64. On 17 May 2007 the Prosecutor General’s Office in Lithuania received I.R.’s written plea requesting ‒ on the basis of Article 366 § 1 (9) of the Code of Civil Procedure (see paragraph 136 below; hereafter “CCP”) ‒ that the court proceedings concerning the second applicant’s return be reopened. 65. On 4 June 2007 and 13 June 2007, respectively, I.R. and the Prosecutor General of Lithuania, who sought to defend the public interest, attempted to have the Lithuanian court proceedings for the child’s return reopened. They relied on Article 366 § 1 (2 and 9) of the CCP and argued that in the ruling on 15 March 2007 (see paragraphs 19-21 above) the Court of Appeal had failed to take into account the fact that there would be a grave risk to the girl’s well-being if she were to return to Germany. By that time she had lived in Lithuania for a considerable period and was integrated into the Lithuanian environment. If she were removed from Lithuania, she would lose her solid connection with her mother and be placed in an unfamiliar linguistic environment. I.R. also referred to the state of health of her son, E.M., claiming that he was afraid of losing his mother should she decide to go to Germany with the second applicant. 66. On 19 June 2007, the Klaipėda Regional Court refused to accept both applications for examination. The court also reiterated that all questions relating to the parents’ divorce and the custody of their daughter fell within the jurisdiction of the Oranienburg District Court. 67. Both I.R and the Prosecutor General appealed against the Klaipėda Regional Court’s decision. The first applicant, in turn, asked that their appeals be dismissed. He submitted, among other things, that the Prosecutor General had ignored the aims of the Hague Convention and of Regulation (EC) No. 2201/2003 and had also disregarded Article 8 of the Convention. 68. The Court of Appeal upheld the Klaipėda Regional Court’s decision on 27 August 2007. The Court of Appeal also underlined that the 15 March 2007 ruling of the Court of Appeal (see paragraphs 18-20 above) was not amenable to reopening under Article 365 § 1 of the Code of Civil Procedure. 69. The Prosecutor General and I.R. lodged an appeal with the Supreme Court against the rulings of the Klaipėda Regional Court and the Court of Appeal of 19 June 2007 and 27 August 2007, respectively, regarding the reopening of civil proceedings. The first applicant responded by arguing that the reopening of civil proceedings for the child’s return would contradict the very essence of the goal set by Regulation (EC) No. 2201/2003, namely that such cases should be decided without undue delay and within six weeks of the lodging of the application for the child’s return. The first applicant pointed out that on 27 August 2007 the Court of Appeal had correctly stated that the 15 March 2007 Court of Appeal ruling could not be amenable to reopening as the principles of concentration of civil proceedings and fairness would otherwise be contradicted and the child’s return would be delayed indefinitely. The first applicant also submitted that, in the light of the aim of Regulation (EC) No. 2201/2003 and of the Law on the Implementation of EC Regulation No. 2201/2003, neither cassation nor reopening of proceedings would be permissible procedural measures. He relied on the Hague Convention and on Article 8 of the Convention, maintaining that an unjustified application for the reopening of civil proceedings would breach his right to respect for family life. 70. On 16 October 2007, the Supreme Court’s chamber for the selection of cases to be examined in appeals on points of law ( teisėjų atrankos kolegija ) accepted for examination the appeal on points of law for reopening of proceedings lodged by the Prosecutor General, who was acting to protect the public interest. In that context, on 19 October 2007 the Supreme Court’s chamber also accepted for examination the appeal on points of law lodged by I.R., who had also asked the Supreme Court to suspend execution of the 15 March 2007 Court of Appeal ruling for the second applicant’s return (see paragraphs 19-21 above). The Supreme Court’s chamber pointed out, however, that pursuant to Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003, no appeal on points of law was possible in proceedings involving the return of a child which have been instituted under Regulation (EC) No. 2201/2003. It followed that there was no legal basis on which to grant I.R.’s request for suspension of the execution of the Court of Appeal ruling of 15 March 2007 ordering her daughter’s return to Germany. The chamber also indicated that its ruling was “final and not amenable to appeal”. 71. On 22 October 2007 the Prosecutor General submitted to the Supreme Court a fresh request for suspension of execution of the Court of Appeal’s ruling of 15 March 2007, pointing out that at that time execution of that court decision had already begun, the police and the bailiff having taken measures to establish the child’s whereabouts and to return her to Germany. The Prosecutor General pleaded that there was a theoretical possibility that the proceedings in the civil case which had been concluded by the final decision of the Court of Appeal of 15 March 2007 might be reopened. Afterwards, the courts could theoretically decide not to return the child to Germany, on the basis of the exceptions provided for in the Hague Convention. If that was the situation, this new court decision would remain impossible to execute, because by that time the child would be in Germany. 72. It was also the Prosecutor General’s view that in order to give priority to the best interests of the child, especially to a young child’s need to live in a familiar and stable environment, it was necessary to suspend the execution of the Court of Appeal ruling of 15 March 2007 “so that the child’s status quo would be maintained whilst the court proceedings were ongoing, and that possible damage to the child’s mental state and development could be avoided”. The Prosecutor General thus asked that temporary protective measures be applied. 73. The same day, 22 October 2007, the President of the Supreme Court, V.G., unilaterally adopted a ruling suspending the execution of the Court of Appeal judgment of 15 March 2007 until the Prosecutor General’s appeal on points of law regarding the possibility of reopening the court proceedings in Lithuania had been examined. The President of the Supreme Court considered that the criterion determining when an appeal on points of law was not possible (namely the child’s return under Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003) did not automatically preclude an appeal on points of law in respect of the reopening of proceedings. Moreover, in his view, Article 372 of the Code of Civil Procedure allowed the suspension of execution of a court’s decision at any stage of the court proceedings (that is to say, also at the stage of an appeal on points of law) (see paragraph 136 below). The President of the Supreme Court noted that the subject matter of the Prosecutor General’s appeal on points of law in that case was not the return of the child, but the question of reopening the court proceedings (“ kasacinio nagrinėjimo dalykas šioje byloje yra proceso atnaujinimo klausimai, o ne vaiko grąžinimo klausimas – prašoma priimti procesinį sprendimą būtent dėl proceso atnaujinimo ir sustabdyti sprendimo vykdymą ryšium su galimu proceso atnaujinimu konkrečioje byloje ”). The President of the Supreme Court also held that in the instant case relating to the reopening of the civil case concerning the child’s return, it was necessary to suspend execution of the Court of Appeal’s decision because “the child is a minor, she does not speak German, she is attached to her mother and her brother, and she has spent the majority of her life in Lithuania”. The President of the Supreme Court considered that, if the child were to return to Germany before the question of reopening was decided, it would cause her great psychological harm. 74. On 26 October 2007 the first applicant attempted to appeal against the Supreme Court President’s ruling. He pleaded, in writing, that when suspending execution of the 15 March 2007 Court of Appeal decision, the President had acted outside the law and had exceeded the powers assigned to him under the Code of Civil Procedure. The first applicant also argued that by suspending execution of the Court of Appeal ruling on the second applicant’s return, the child would be prevented from seeing her father. Given the second applicant’s young age, that would be detrimental to their connection with each other and would place the child in an intolerable situation. The first applicant also pointed out that the President of the Supreme Court had exceeded the boundaries of the Prosecutor General’s request, because when suspending the execution of the return decision the President had relied on circumstances such as the second applicant’s attachment to her mother and brother, the fact that she was at a young age, and that for most of her life she had lived in Lithuania, which had not been relied on by the Prosecutor General in his request. Moreover, no proof supporting psychological harm to the second applicant had been provided to the President of the Supreme Court. Lastly, the first applicant relied on Article 8 of the Convention and the Court’s case-law on the issue (he referred to Sylvester v. Austria, nos. 36812/97 and 40104/98, § 60, 24 April 2003; Maire v. Portugal, no. 48206/99, § 74, ECHR 2003 ‑ VII; and Iosub Caras v. Romania, no. 7198/04, § 38, 27 July 2006), pointing out that, under the Hague Convention, undue delay in returning a child to the State in which he or she was habitually resident was in breach of Article 8 of the Convention. He also pointed out that under Regulation (EC) No. 2201/2003 the authorities had six weeks to decide the issue of return, but this had not been the case in his situation. 75. On 30 October 2007 the President replied that the ruling adopted by him was “final and not amenable to appeal”. The first applicant then made a further attempt to appeal against the Supreme Court President’s ruling. He argued that the President had acted outside the law and in breach of the rules of the Code of Civil Procedure, the Law on the Implementation of EC Regulation No. 2201/2003, the Hague Convention, and Regulation (EC) No. 2201/2003 itself. By a ruling of 29 November 2007 the Supreme Court’s Chamber dismissed the appeal, noting that it did not have the competence to review a ruling by the President. 76. By a ruling of 7 January 2008 the Supreme Court held that both the Klaipėda Regional Court and the Court of Appeal had erred in applying civil procedure rules concerning the reopening of proceedings (see paragraphs 66 and 68 above). The Supreme Court remitted to the Klaipėda Regional Court the case concerning the reopening of the civil proceedings concerning the girl’s return. 77. On 21 March 2008 the Klaipėda Regional Court again rejected as unfounded the request for reopening of proceedings, and the Court of Appeal did likewise on 30 April 2008. On the basis of information received from Germany – a letter from the Prosecutor General of the German Supreme Court of 20 November 2006 and the German courts’ decisions regarding the second applicant’s custody and return – the Court of Appeal considered that measures had been taken in Germany to protect the second applicant’s interests upon her return. That being the case, a Lithuanian court could not refuse to return the child on the basis of Article 13 (b) of the Hague Convention, because to do otherwise would be in contradiction to Article 11 § 4 of Regulation (EC) No. 2201/2003. The Court of Appeal also relied on the findings of the Brandenburg Regional Court of 20 February 2008 (see paragraph 92 below) to the effect that any psychological problems which the second applicant might face because of her separation from the mother upon her return to Germany were less harmful than being taken care of by a mother “whose manner of raising [the second applicant] had obvious flaws ( ženklūs auklėjimo trūkumai )”. 78. In the meantime, between 5 February and 20 March 2008, at the first applicant’s request, the bailiff reopened the execution file since after the Supreme Court’s ruling of 7 January 2008 (see paragraph 76 above), the Supreme Court’s President’s decision to suspend the execution of transfer (see paragraph 73 above) had become invalid. The bailiff ordered I.R. to provide information about the second applicant’s whereabouts and to present herself at the Klaipėda child care authority to discuss the details of the girl’s transfer. As noted by the bailiff, I.R. did not cooperate. Instead, on 20 February 2008 she asked the Supreme Court to suspend execution of the 15 March 2007 Court of Appeal decision for the child’s return. This request for suspension was submitted to the Supreme Court by I.R. when she challenged the Klaipėda Regional Court’s decision of 4 December 2007 (see paragraph 32 above) to uphold the bailiff’s actions of September 2007 to continue with the execution of the court decision for the girls’ return. 79. On 15 March 2008 the Supreme Court again decided to suspend the execution proceedings until there had been a ruling on I.R.’s appeal on points of law concerning the Klaipėda Regional Court’s decision of 4 December 2007 upholding the bailiff’s actions. E. The first applicant’s complaints to the European Commission, the European Commission’s inquiry and the response by the Ministry of Justice 80. On 13 October 2007 the first applicant wrote to F.F., who at that time was the European Commissioner for Justice, Freedom and Security and the Vice President of the European Commission. The first applicant stated that he had been prevented from seeing his daughter since 14 December 2006, despite the fact that he had been awarded temporary sole custody by the German courts, and likewise notwithstanding the Lithuanian Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above). He highlighted that I.R. had been hiding his daughter from him, that the bailiff had been threatened with murder, and that the first applicant had been publicly called names such as “German pig”, “Nazi” and “fascist” (see paragraph 53 above). This behaviour had been widely supported and encouraged by Lithuanian politicians, including members of the Seimas and the Chairman of its Committee on Human Rights, by the prosecutor in Klaipėda and the Minister of Justice, as well as by the mass media and the child care authorities. The applicant referred to certain of the facts as described above in this judgment in particular. 81. On 30 June 2008 the Lithuanian Government received an inquiry from the European Commission in connection with the Rinau case regarding the fact that, even though more than fourteen months had elapsed since the Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above), the second applicant had still not been returned to Germany. The European Commission pointed out that the first applicant had attempted to ensure that the aforementioned court ruling was executed, but that all his efforts had been in vain. The Commission stated that it was seeking to evaluate whether the actions of the Lithuanian State institutions had been in accordance with European Union law, including Regulation (EC) No. 2201/2003. The Lithuanian authorities were therefore asked to explain the reasons for the non-return of the second applicant. The European Commission also wished to know what was the length of time that it usually took in Lithuania to execute court decisions for a child’s return from one parent to another who had exclusive custody rights. The European Commission also asked to be provided with information about the special circumstances of the applicants’ case, if there were any. Lastly, the European Commission pointed to the fact that the Supreme Court had suspended execution of the 15 March 2007 Court of Appeal ruling on the grounds that questions of European Union law had been referred to the ECJ for interpretation (see paragraph 94 below). The European Commission asked the Lithuanian authorities to provide an explanation as to the basis (“ kuo remdamasis ”) on which the Supreme Court had taken such a decision to suspend the Court of Appeal ruling. 82. In July 2008 the news agency Baltic News Service quoted the Lithuanian Ambassador to the European Commission as saying that “the European Commission was interested in the Lithuanian institutions’ attitude towards the Rinau case”. For their part, the Lithuanian officials believed that there was no danger that the European Commission would start infringement proceedings, which could lead to Lithuania being obliged to pay a fine. They noted that the proceedings before the European Court of Justice were already pending at that time (see paragraphs 98-103 below). 83. On 18 July 2008 the Ministry of Justice sent its reply to the European Commission. The Ministry firstly noted that, under Articles 109 and 114 of the Constitution, in Lithuania justice was administered solely by the courts and that “the Ministry had not taken part in the processes concerning the [second applicant’s] return to Germany”. Responding to the Commission’s question why fourteen months after the Lithuanian Court of Appeal ruling (see paragraph 19 above) the first applicant’s child had still not been returned to Germany, the Ministry recounted the chronology of the respective court proceedings that had taken place in Lithuania. The Ministry pointed out that, in order to guarantee the swiftest possible proceedings so as to hear the cases for a child’s return quickly, and also to protect the interests of a child so that one who had been taken away or had not been returned would be returned as quickly as possible, the Law on the Implementation of EC Regulation No. 2201/2003 (see paragraph 134 below) did not allow appeals on points of law ( neleidžia kasacijos ) in child return cases. However, if there was a reopening of civil proceedings ( taikant proceso atnaujinimo institutą ), under the Code of Civil Procedure both appeals and appeals on points of law were possible ( galima ir apeliacija, ir kasacija ). 84. The Ministry of Justice considered that, in theory, the reopening of civil proceedings was an exceptional way to monitor the lawfulness and reasonableness of court decisions which were already in force. Reopening of proceedings provided an opportunity to rectify mistakes of law in court decisions that were already final, thus protecting not only private but also public interests. The grounds for reopening civil proceedings were laid down in Article 366 of the Code of Civil Procedure – namely circumstances that could not have been verified when the case was examined (for example, circumstances that came to light later). The Ministry of Justice suggested that this was the reason (“ tai lemia ”) why court proceedings in Lithuania were still on-going after the 15 March 2007 Court of Appeal ruling which had ordered the child’s return to Germany. 85. As to the Commission’s question about the time usually taken to execute a court decision by which one of the parents is obliged to return the child to another parent who has sole custody rights, the Ministry of Justice wrote that the information of this kind was not entered into record ( tokie duomenys nėra renkami ) and that the time depended upon the factual circumstances of each particular case. 86. Lastly, the Ministry of Justice wrote that on 26 May 2008 the Supreme Court had suspended execution of the Court of Appeal ruling of 15 March 2007 on the basis of Article 363 of the CCP (see paragraph 136 below). The Ministry pointed out that the letter of the aforementioned provision of the Code of the Civil Procedure allowed execution of a court decision or a ruling which had been subject to cassation appeal to be suspended. However, relying on the Commentary to the CCP ( Lietuvos Respublikos civilinio proceso kodekso komentaras. II dalis. Vilnius: Justitia, 2005, p. 450 ), the Ministry also stated that in exceptional cases it was possible to suspend execution of a court decision which was not the subject of cassation proceedings. It was within the Supreme Court’s discretion to evaluate the factual circumstances of the case and their possible impact on human rights or lawful interests and to suspend execution of a particular court decision or ruling. F. Proceedings in Lithuania for recognition of the second applicant’s Lithuanian citizenship 87. In May 2008 I.R. asked the Migration Department in Vilnius to recognise ( pripažinti ) the second applicant’s Lithuanian citizenship. The Migration Department replied, however, that pursuant to Article 23 § 1 of the Law on Citizenship (see paragraph 132 below), I.R. should have provided documents showing that both parents had agreed in writing to the child taking up the Lithuanian citizenship, as well as a document confirming that she had renounced any other (namely German) citizenship. 88. On 24 July 2008, that is to say, two days after the amendments to the Law on Citizenship had come into force (also see paragraphs 91 and 133 below), I.R. asked the Lithuanian authorities to recognise her daughter’s Lithuanian citizenship. The migration authorities in Klaipėda granted I.R.’s request on 11 August 2008, and issued the second applicant with a Lithuanian passport. The authorities cited Article 9 § 1 and Article 22 of the Law on Citizenship as in force at that time as the legal basis for such a decision (see paragraphs 132 and 133 below). 89. The first applicant appealed, arguing that the Lithuanian passport had been issued in breach of the law. He alleged I.R. should not have submitted such a request because on 20 June 2007 the Oranienburg court had ruled that questions of the second applicant’s citizenship were to be decided by the first applicant (see paragraph 92 below). He conceded that his daughter had the right to Lithuanian citizenship, but that right should have been properly exercised. 90. By a decision of 6 January 2009 the Migration Department rejected the first applicant’s request to rescind his daughter’s Lithuanian citizenship. It noted that the Government Commission for Questions of Citizenship had examined the first applicant’s complaint and the girl’s situation and on 11 December 2008 had ruled that the second applicant had been lawfully recognised as a Lithuanian citizen on the basis of Article 9 § 1 of the Law on Citizenship, which stated that a child with parents of different citizenships, but one of whom was a Lithuanian citizen, could be a Lithuanian citizen irrespective of where he or she was born (see paragraph 133 below). Citizenship had been recognised on the basis of a request by I.R., who, according to the Migration Department, was her daughter’s lawful legal representative because the Lithuanian migration authorities had no knowledge that I.R. had been recognised as not having legal capacity ( pripažinta neveiksnia ), as noted in Article 3.157 of the Civil Code (see paragraph 142 below). The Migration Department also stated that an appeal against its decision could be lodged before the Commission for Administrative Disputes or an administrative court. It appears that after the second applicant’s return to Germany (see paragraph 112 below) the first applicant did not pursue these proceedings any further. 91. According to a press release issued by the Chairman of the Seimas Committee on Human Rights, A.L., “the doubts as to whether [the second applicant] has been recognised as a Lithuanian citizen ‒ and whose mother I.R. is using all possible means ( visomis priemonėmis siekia ) to ensure that the girl remains in Lithuania ‒ are speculative and not well-founded”. A.L., who presided over the working group which prepared the amendments to Article 9 § 1 of the Law on Citizenship, “considered that [the amendments] which came into force in July 2008 created the possibility ( suteikė galimybę ) for [the second applicant] to be not only a citizen of Germany but also a Lithuanian citizen.” According to the press release, A.L. was “confident that attempts to question the lawfulness of [the second applicant’s] [Lithuanian] citizenship represented merely the wish of malefactors ( piktavaliai ) to harm the little girl, who spoke only Lithuanian, because in Germany she would be forced to communicate with people who did not know her language. This was against the interests of the child and was also in breach of the Hague Convention, which declares that the child’s interest must prevail when taking decisions relating to him or her”. G. The first applicant’s and I.R.’s divorce in Germany, the German courts’ decisions regarding the second applicant’s custody 92. By a judgment of 20 June 2007 the Oranienburg District Court granted a divorce to the first applicant and his spouse. It awarded permanent custody of their daughter to her father. The court also ordered that questions regarding the second applicant’s citizenship should be decided by the first applicant. The German court examined the Klaipėda Regional Court’s decision of 22 December 2006 refusing the return of the child (see paragraph 17 above), but ordered I.R. to return the child to Germany and to leave her in the custody of her father. I.R. was not present at that court hearing, but was represented and made submissions. On the same day, the Oranienburg District Court annexed to its decision a certificate issued pursuant to Article 42 § 1 of Regulation (EC) No. 2201/2003 (see paragraph 150 below). On 20 February 2008, the Brandenburg Regional Court dismissed an appeal lodged by I.R. and held that she was bound to return the child to Germany. I.R. was present at the hearing and made submissions. It appears from the German court’s judgments in the case file that I.R. was represented and able to submit observations, even though not physically present, in the proceedings giving rise to the Oranienburg court’s judgments of 14 August 2006 and 20 June 2007. That information was confirmed at the hearing before the Court of Justice, when she was again present (see paragraph 101 below). On 14 May 2008 the Oranienburg District Court issued the certificate ordering the second applicant’s return to the first applicant, on the basis of that court’s decision of 20 June 2007 and pursuant to Articles 28 and 42 of Regulation (EC) No. 2201/2003. 93. Meanwhile, I.R. asked the Lithuanian Court of Appeal not to recognise the Oranienburg District Court’s decision of 20 June 2007 regarding the child’s custody and return and to apply temporary protective measures, namely to suspend execution of its earlier decision of 15 March 2007 for the second applicant’s transfer to Germany (see paragraphs 19-21 above). On 14 September 2007 the Court of Appeal refused to accept I.R.’s request for examination. It pointed out that, pursuant to its earlier decision of 15 March 2007, I.R. had been obliged to return the child to Germany on the basis of Article 13 of the Hague Convention. The Court of Appeal also noted that the certificate issued by the Oranienburg District Court pursuant to Article 42 of Regulation (EC) No. 2201/2003 stated that all the conditions necessary for the issue of such a certificate, as set out in Article 42(2), had been satisfied. The Court of Appeal noted that the German court’s judgment, in so far as it ordered the return of the child to Germany, ought to have been directly enforced pursuant to the provisions of [Article 42 of] Regulation (EC) No. 2201/2003, without the need for special exequatur proceedings for the recognition and enforcement of judicial decisions (see paragraph 150 below). Lastly, in the light of the foregoing, the Court of Appeal also rejected I.R.’s request for the application of temporary protective measures. H. Suspension of the court proceedings concerning the second applicant’s return in Lithuania and the referral to the European Court of Justice for a preliminary ruling 94. In response to an appeal by I.R. against the Court of Appeal decision of 14 September 2007 (see paragraph 93 above), on 30 April 2008 the Supreme Court decided to suspend civil proceedings and to put to the ECJ six questions regarding the interpretation of Regulation (EC) No. 2201/2003, including that of Article 42 thereof. The questions were: “(1) ‘Can an interested party within the meaning of Article 21 of Council Regulation (EC) No 2201/2003 apply for non-recognition of a judicial decision if no application has been submitted for recognition of that decision?’ (2) ‘If the answer to Question 1 is in the affirmative: how is a national court, when examining an application for non-recognition of a decision brought by a person against whom that decision is to be enforced, to apply Article 31(1) of Regulation No 2201/2003, which states that ‘... Neither the person against whom enforcement is sought, nor the child shall, at this stage of the proceedings, be entitled to make any submissions on the application’?’ (3) ‘Is the national court which has received an application by the holder of parental responsibility for non-recognition of that part of the decision of the court of the Member State of origin requiring that that holder return to the State of origin the child staying with that holder, and in respect of which the certificate provided for in Article 42 of Regulation No 2201/2003 has been issued, required to examine that application on the basis of the provisions contained in Sections 1 and 2 of Chapter III of Regulation No 2201/2003, as provided for in Article 40(2) of that regulation?’ (4) ‘What meaning is to be attached to the condition laid down in Article 21(3) of Regulation No 2201/2003 (‘Without prejudice to Section 4 of this Chapter’)?’ (5) ‘Do the adoption of a decision that the child be returned and the issue of a certificate under Article 42 of Regulation No 2201/2003 in the court of the Member State of origin, after a court of the Member State in which the child is being unlawfully kept has taken a decision that the child be returned to his or her State of origin, comply with the objectives of and procedures under Regulation No 2201/2003?’ (6) ‘Does the prohibition in Article 24 of Regulation No 2201/2003 of review of the jurisdiction of the court of the Member State of origin mean that, if it has received an application for recognition or non-recognition of a decision of a foreign court and is unable to establish the jurisdiction of the court of the Member State of origin and unable to identify any other grounds set out in Article 23 of Regulation No 2201/2003 as a basis for non-recognition of decisions, the national court is obliged to recognise the decision of the court of the Member State of origin ordering the child’s return in the case where the court of the Member State of origin failed to observe the procedures laid down in the regulation when deciding on the issue of the child’s return?’” Pending the ECJ’s examination of the questions referred to it, in a ruling of 26 May 2008 the Supreme Court also suspended execution of the Court of Appeal decision of 15 March 2007 requiring the return of the girl to Germany. 95. On 21 May 2008 the Supreme Court also requested that the referral to the ECJ for a preliminary ruling be dealt with under the urgent procedure provided for in Article 104b of the ECJ Rules of Procedure. To substantiate this request the Supreme Court this time referred to the necessity to act urgently on the grounds that any delay would have a very unfavourable impact on the relationship between the child and the parent with whom she was not living. 96. In June 2008 the Lithuanian press quoted I.R. as saying that the European Court of Justice was her last hope in having the case regarding the second applicant’s custody decided by the Lithuanian courts. She stated that she did not dare to think about how she would manage to execute the German courts’ decisions should the European Court of Justice findings be unfavourable to her. 97. On 22 October 2008 the Lithuanian Government passed resolution no. 1062 “On the allocation of means ( Dėl lėšų skyrimo )”, by which it allocated a sum of LTL 5,300 (approximately EUR 1,530) “to the citizen of the Republic of Lithuania I.R. so that she could cover the fees of the lawyer G.K. who had represented her on 26 and 27 June 2008 at the European Court of Justice” (also see paragraph 101 below). I. The response from the European Court of Justice 1. The View of Advocate General 98. On 1 July 2008 the Advocate General (AG) observed in her View that since one factor characteristic of the situations under consideration consisted in the fact that the abductor claimed that his or her actions had been rendered lawful by the competent authorities of the State of refuge [in this case – Lithuania], one effective way of deterring him or her would be to deprive his or her actions of any practical or juridical consequences. In order to bring this about, the Hague Convention placed at the head of its objectives the restoration of the status quo, by means of “the prompt return of children wrongfully removed to or retained in any Contracting State” (paragraph 15 of the View). A principle which underpinned Regulation (EC) No. 2201/2003 as a whole was that of cooperation and mutual confidence between the courts and authorities of the Member States, which implied that decisions of the courts of the Member State of the child’s habitual residence should in principle be recognised and enforced automatically (paragraph 18 of the View). The Advocate General also noted that “the fundamental significance of this principle was brought into focus at the hearing when counsel for [I.R.] suggested that the Lithuanian courts might consider that the objectivity of the German courts was not guaranteed in a dispute between a German father and a Lithuanian mother”. For the Advocate General, “it was clear that to allow recognition to be refused on the basis of such doubts (whether they were or were not in fact felt by the Lithuanian courts) would negate the whole system which the Regulation seeks to establish” (paragraph 19 of the View). 99. Whilst reiterating that the superior interests of the child must be paramount in all circumstances, the Advocate General observed the following: “22. However, I should like to qualify that statement in the context of the child’s return to the Member State of habitual residence. It is clear that the Convention and the Regulation are based on the principle that, in the event of a child’s wrongful removal or retention, his or her superior interests do indeed always require that return, except only in certain clearly-defined situations set out in Articles 13 and 20 of the Convention (read, in so far as Article 13(b) is concerned, in conjunction with Article 11(4) of the Regulation). That, it seems to me, is perfectly coherent, and even necessary. A child can have no interest in being dragged from one Member State to another by a parent in quest of the court which he or she supposes will be the most sympathetic to his or her cause. I would add that a return to the Member State of habitual residence does not necessarily imply the child’s return to the home of the parent left behind, or separation from the abducting parent. Those are separate questions, to be decided by the competent court, which must take account of all the emotional, psychological and material aspects of the situation and which must, in deciding, accord paramount importance to the child’s superior interests.” 100. As to the applicants’ case, the Advocate General considered that “one cannot but observe that, in the present case, the fundamental aim of depriving the actions of the abducting parent of any practical or juridical consequences by ensuring the child’s prompt return is far from having been achieved” (paragraph 24 of the View). It was neither denied nor deniable that the German courts had jurisdiction to hear the divorce proceedings under Article 3(1)(a) of Regulation (EC) No. 2201/2003, as all the residence requirements listed there had been fulfilled at the time when the proceedings were initiated. Next, it appeared to be common ground that the child had indeed been wrongfully retained for the purposes of the Hague Convention (Article 3) and Regulation (EC) No 2201/2003 (Article 2(11)). At the time when the mother had announced her intention not to return to Germany with the child, custody rights had actually been exercised by both parents jointly, by virtue of German law, and the father had consented only to a two-week trip to Lithuania (paragraphs 27 and 28 of the View). In the Advocate General’s view, once seised, the Lithuanian court had in principle been required to order the child’s return. It should also have issued its judgment no later than six weeks after the application was lodged. The only grounds on which it could have refused to order the child’s return were those set out in Article 13 of the Hague Convention (paragraph 33 of the View). The Advocate General thus stated: “39. However, as a result of the mother’s application for the proceedings to be reopened and the procedural vagaries that have followed upon it, the decision was not enforced, nor has it been enforced to this day. On the contrary, enforcement of the Court of Appeal’s decision has been suspended on several occasions, even by the Supreme Court itself – despite the fact that the same Supreme Court held, in its judgment allowing the reopening, that such suspension was not possible. 40. Even if enforcement of a judgment of a court of a Member State within its own territory is a matter for domestic law, it can only be concluded, at this point, that the outcome of these successive suspensions – the fact that, nearly two years after she was first supposed to return and more than 15 months after the decision ordering her return was issued, the child has still not been brought back to Germany – is totally incompatible with the fundamental aims of the Convention and the Regulation.” 2. The preliminary ruling 101. The European Court of Justice held hearings on 26 and 27 June 2008. I.R. was represented by two lawyers, G.B. (see paragraph 59 above) and G.K., who submitted observations on her behalf. The lawyer G.K. told the Lithuanian press that “it is obvious that the German court’s certificate for the return of the child was invalid ... However, only [the European Court of Justice] may decide whether law can be born out of unlawfulness”. The Lithuanian Government were represented by two lawyers from the European Law Department under the Ministry of Justice. The first applicant also had a lawyer – the one who had represented him in the court proceedings in Lithuania. 102. On 11 July 2008 the European Court of Justice delivered its preliminary ruling (ECLI:EU:C:2008:406) on interpretation of the Regulation, having examined the referral for a preliminary ruling under an urgent procedure pursuant to Article 104b of its Rules of Procedure. The ECJ noted that the Regulation complements the provisions of the 1980 Hague Convention, which nevertheless remains applicable (paragraph 53 of the ECJ’s judgment). It then held, inter alia, that procedural steps which had been taken in the Member State of enforcement after a non-return decision had been given were not decisive and could be regarded as irrelevant for the purposes of implementing the Community regulation in question (paragraph 80 of the ECJ’s judgment). If the position were otherwise, there would be a risk that the Regulation would be deprived of its useful effect, since the objective of the child’s immediate return would remain subject to the condition that the redress procedures allowed under the domestic law of the Member State in which the child was being wrongfully retained had been exhausted. That risk should be particularly balanced because, where young children were concerned, biological time could not be measured according to general criteria, given the intellectual and psychological structure of such children and the speed with which that structure develops (paragraph 81 of the ECJ’s judgment). Since no doubt had been expressed as regards the authenticity of the certificate issued by the German court and since it had been drawn up in accordance with the provisions of the Regulation, opposition to the recognition of the decision ordering return was not permitted and it was for the Lithuanian court merely to declare the enforceability of the certified decision and to allow the immediate return of the child (paragraphs 89 and 109 of the ECJ’s judgment). 103. The European Court of Justice also held: “87. First, the sequence of the decisions taken by the Lithuanian courts, as regards both the application for return and that for non‑recognition of the decision certified pursuant to Article 42 of the Regulation, does not appear to have observed the autonomy of the procedure provided for in that provision. Second, the number of decisions and their diverse nature (to set aside, overturn, reopen, suspend) are evidence that, even if the most expeditious domestic procedures may have been adopted, the periods of time elapsed were already, on the date on which the certificate was issued, in manifest contradiction to the requirements of the Regulation.” J. The Supreme Court’s reaction to the ECJ’s preliminary ruling 104. In a ruling of 9 July 2008, that is to say, after the ECJ had delivered its preliminary ruling, the Supreme Court asked the State Child Rights and Adoption Service for a fresh conclusion regarding the possibility of returning the second applicant to Germany. The Supreme Court reasoned that such a conclusion had to be produced under Article 2 § 3 of the Law on EU Regulation implementation (see paragraph 134 below) and that it was necessary given that “a certain time had passed since the case had been examined”. 105. On 24 July 2008 the first applicant wrote to the Supreme Court that under Article 2 § 6 of the Law on the Implementation of EC Regulation No. 2201/2003, an appeal on points of law was not possible in cases concerning a child’s return. The first applicant also underlined that the conclusion which the Supreme Court had ordered the State Child Rights and Adoption Service to produce was related to the factual circumstances of the case and their evaluation. The first applicant pointed out that, under Article 353 §1 of the Code of Civil Procedure, the Supreme Court was bound by the facts as they had been established by the first-instance and appellate courts (see paragraph 136 below). Accordingly, it was not the Supreme Court’s function to examine the factual circumstances of the case even if they were mentioned in an appeal on points of law or a response to it. Above all, it was not the Supreme Court’s function to gather evidence ex proprio motu. To interpret the Code of Civil Procedure in any other way would negate the entire purpose and meaning of proceedings on points of law, the main aim of which was to ensure the uniform interpretation and application of law, as set out in Article 346 § 2 of the Code of Civil Procedure (see paragraph 136 below). The first applicant also emphasised that none of the parties to the civil proceedings (namely himself, the Prosecutor General, and I.R.) had asked the Supreme Court to order such a fresh conclusion by the State Child Rights and Adoption Service. Lastly, he pointed out that the proceedings regarding the merits of the request to return the girl to Germany had already been terminated by the final and enforceable Court of Appeal decision of 15 March 2007 (see paragraphs 19-21 above). In those proceedings such a conclusion had already been produced on 22 November 2006 (see paragraph 15 above). These proceedings, however, had been initiated to look into the legal question of the possibility of a reopening (see paragraph 73 above). 106. By final ruling no. 3K-3-403/2008 of 25 August 2008, the Supreme Court rejected the Prosecutor General’s and I.R.’s requests for a reopening of the civil proceedings for the second applicant’s return, leaving the Court of Appeal’s decision of 30 April 2008 unchanged (see paragraph 77 above). The State Child Rights and Adoption Service was party concerned in those proceedings. Relying on the ECJ’s preliminary ruling, the Supreme Court pointed out that once a court of the child’s country of origin had taken a decision for that child’s return and issued a certificate as set out in Article 42 of Regulation (EC) No. 2201/2003, a court in the State in which execution of that decision had been requested could only pronounce ( tik paskelbti ) that other court’s decision and grant the request to return the child without delay. In the light of the ECJ’s preliminary ruling, the Supreme Court also held that the Lithuanian courts did not have jurisdiction to review the German courts’ decisions on the basis of which a certificate for the child’s return had been issued. Moreover, as explained by the ECJ, once a certificate under Article 42 of Regulation (EC) No. 2201/2003 had been issued in the child’s state of origin [Germany], [any] court decisions taken in the State where the child was residing [Lithuania], would have no effect on its validity or its enforcement. The Supreme Court thus concluded that “any measure aimed at the reopening or further continuation of the court proceedings was prohibited ( tai užkerta kelią proceso atnaujinimui ar jo tolimesniam vyksmui )”. 107. Although I.R. had relied on a report ( raštas ) of 31 October 2007 from the Ministry of Social Security and Labour stating that the State Child Rights and Adoption Service had not executed its duties properly when providing a conclusion in the instant case and that the director of that Service had been issued with a disciplinary sanction in that regard, the Supreme Court considered that this had not been of any relevance as regards the lawfulness of the decision of 15 March 2007 by the Court of Appeal concerning the second applicant’s return. In that context the Supreme Court also pointed out that in their request to reopen the civil proceedings in the case which had been terminated by the 15 March 2007 Court of Appeal ruling, I.R. and the Prosecutor General had relied on Article 366 § 1 (2 and 9) of the Code of Civil Procedure, that is, that new circumstances had come to light which could not have been known when the case was heard initially and that there had been a clear error when applying the law. Regarding the first ground, the Supreme Court held that the fact that the child would be in unfamiliar linguistic environment if she were to be returned to Germany did not correspond to any of the cases mentioned in Article 13 (b) of the Hague Convention. Because of her young age she would have the capacity to learn another language, and mere immersion in another linguistic environment could not be seen as causing the child physical or mental harm within the meaning of Article 13 (b) of the Hague Convention. As to I.R.’s argument that her son’s health would deteriorate upon the second applicant’s return to Germany, that contention was not related to any potential harm to the child who was to be returned – the second applicant. Moreover, the circumstances regarding I.R.’s son’s ailment had been known from the very beginning of the court proceedings for the second applicant’s return. That circumstance could therefore not be considered as new. Lastly, the Supreme Court pointed out that the rule that siblings should not be separated applied in relation to their adoption [which was not the situation in the case at hand] (Article 3.209 § 6 of the Civil Code). 108. The Supreme Court then turned to the Prosecutor General’s submission that when sanctioning the child’s return, the Court of Appeal had committed a clear mistake of law in interpreting Article 13 (b) of the Hague Convention and Article 3 of the Convention on the Rights of the Child, and that this would, in turn, constitute a basis for reopening the civil court proceedings under Article 366 § 1 (9) of the CCP. The Supreme Court however pointed out that the Klaipėda Regional Court and the Court of Appeal − both during the proceedings for the second applicant’s return (see paragraphs 17 and 19-21 above), and when adopting decisions refusing the reopening of court proceedings in the already terminated case (see paragraphs 66, 68 and 77 above) − had not established any exceptions which would permit the non-return of the child on the basis of those two international Conventions. For the Supreme Court, this showed that both the Klaipėda Regional Court and the Court of Appeal had acted within their competence. It followed that no clear mistake of law had been committed. 109. On the same day, 25 August 2008, the Supreme Court adopted another ruling, no. 3K-3-126/2008, dismissing I.R.’s appeal on points of law against the Court of Appeal decision of 14 September 2007 by which that court had rejected I.R.’s request for the application of temporary protective measures (see paragraph 93 above). The Supreme Court also relied on the ECJ’s preliminary ruling. 110. Also on the same day, 25 August 2008, I.R. gave an interview to an Internet news portal 15min.lt. The article reported that, after two years of dramatic activity surrounding I.R.’s family, which had been marked by a marathon of court hearings and demonstrations of support ( paramos piketai ), and had attracted attention not only in Lithuania but all over Europe, the Supreme Court had adopted two rulings which were unfavourable to I.R. She stated regarding those decisions: “Clearly, these are unjust decisions, in particular the one refusing to reopen court proceedings. One must conclude that our State does not protect its citizens. As if it is kow-towing ( nuolaidžiaujama ) to a stronger country. This is inhuman, but I cannot lay down my weapons. The execution proceedings remain. I will use all legal avenues to allow my daughter to stay with me and her brother.” I.R. also expressed her happiness that during the two years that she had been fighting for her child she had been supported by her family, and also by Lithuanian society and the State institutions: “My family has been behind me from the very first unfavourable German court decisions. Afterwards Lithuanian institutions joined in. As the saying goes – there cannot be an army of one in the field. The system would have crushed me. I received immense support ( be galo palaikė ) from Lithuanian society, non-governmental organisations, the child care service [ Vaiko teisių tarnyba ], the Seimas, the Government, and the Prosecutor General. Without such support I would have been eaten alive by now.” 111. In reply to an inquiry from the first applicant’s relatives, the President of the Republic later wrote, on 22 September 2008, that he was aware of the case, in which over the previous two years Lithuanian and German courts had adopted more than thirty decisions “which had often been contradictory and invalidated one another”. The President also referred to the ECJ’s preliminary ruling and to the Supreme Court’s subsequent ruling, pursuant to which I.R. had been obliged to return the second applicant to the first applicant. Lastly, the President referred to the principle of the separation of powers, under Article 109 of the Constitution, and stated that, in a democratic State, refusal to execute a court decision was a breach of the principle of the rule of law. The President expressed his confidence ( esame įsitikinę ) that the Lithuanian authorities would ensure that the court decision was executed. K. The events of 20 October 2008 and criminal proceedings against the first applicant on charges of child abduction and wilful conduct 112. On 20 October 2008 the first applicant, I.R. and their daughter attended a meeting at the premises of the Klaipėda child care authority. The first applicant had earlier asked a Lithuanian bailiff for the meeting so that their daughter could be transferred into his custody on the basis of the writ of execution ( vykdomasis raštas ) issued by the Klaipėda Regional Court on 13 June 2007 (see paragraph 26 above). During the meeting ‒ before the bailiff reached the premises and whilst I.R. was in another room talking to a psychologist ‒ the first applicant took their daughter out of the building and drove her away ( išsivežė ). 113. The applicants travelled together to Riga, where they attempted to board a plane to Berlin. According to the Latvian authorities, on the night of 20 October 2008 the two applicants were arrested at Riga airport by the Latvian authorities (also see paragraph 115 below). 114. The following day the two applicants were released by the Latvian authorities, who had established that the first applicant had sole custody rights over the child, as confirmed by the court decision. On the same day, I.R. arrived at Riga airport, accompanied by Lithuanian police officers but returned to Lithuania without the child because the two applicants had boarded a plane to Berlin earlier that day. The Lithuanian press quoted the first applicant as blaming the Lithuanian authorities for their failure to act, and said that he would have had to wait ten years to be reunited with his daughter if he had not acted as he did, taking her away with him. The press also quoted the Ombudsman for Children’s Rights as suggesting that the first applicant’s actions in taking his daughter away with him raised doubts as to whether he could “be good for the child” ( gali būti geras vaikui ) and “properly guarantee the child’s safety” ( tinkamai užtikrinti vaiko saugumą ). 115. On 20 October 2008 a Lithuanian prosecutor opened criminal proceedings against the first applicant on charges of child abduction and wilful conduct ( savavaldžiavimas ) (Article 156 § 2 and Article 294 § 1 of the Criminal Code, see paragraph 143 below). The criminal charges were initiated by a complaint from the Klaipėda child care authority. I.R. was granted victim status in that criminal case. 116. That same day, in response to a request from the prosecutor, the Klaipėda City District Court ordered the first applicant’s detention on remand, holding that he might have violated the rights and interests of I.R. The Lithuanian prosecutors subsequently issued a European Arrest Warrant in respect of the first applicant but cancelled that warrant on 20 November 2008. 117. On 18 November 2008 the Klaipėda Regional Court quashed the order for the detention of the first applicant. The court noted that the German courts’ decisions of 14 August 2006 and 20 June 2007 (see paragraphs 12 and 92 above) had never been invalidated, and should therefore have been executed. The fact that the second applicant should have been transferred into the first applicant’s custody followed both from the ECJ’s preliminary ruling and from the Supreme Court’s rulings of 25 August 2008. There was no basis on which it could be held that the first applicant’s actions had breached the rights of I.R., who had in any case been deprived of her custody rights in respect of her daughter by court decisions that were still valid. 118. The Lithuanian prosecutors however pursued the criminal investigation against the first applicant. On 3 February 2009 he was officially informed that he was a suspect in a criminal case under Articles 156 § 2 and 294 § 2 of the Criminal Code, on the grounds that on 20 October 2008 he had seized the second applicant and driven her away. The prosecutor considered that by such actions the first applicant had caused serious damage to the second applicant’s interests. 119. Subsequently, the prosecutor questioned all the relevant persons in the case: the first applicant, I.R., the representatives of the child care authorities, the bailiff, and others who had taken part in the proceedings concerning the second applicant’s transfer to the first applicant and had witnessed the events of 20 October 2008. The prosecutors also obtained documents from Germany regarding the second applicant’s psychological state after she had been returned to the first applicant. 120. In particular, the director of the Klaipėda Pedagogical Psychological Service ( Klaipėdos pedagoginė psychologinė tarnyba ) testified as a witness that the first applicant’s lawyer had contacted that service between 15 and 20 September 2008, asking that a psychologist be involved when the child was transferred to the first applicant. The Service had agreed to be involved in the transfer proceedings. At the beginning of October 2008 the first applicant had called the Service asking for a consultation. When the director had met the first applicant, they had discussed how to communicate with the child so that the closest possible contact could be established with her so that she would be traumatised as little as possible. She had given him much advice. The first applicant had also complained to the Service that I.R. had not allowed him to communicate with his daughter. The director also testified that the first applicant had asked her to attend a meeting at 2.15 p.m. on 20 October 2008 so that she could see how he communicated with the child and whether everything was in order. The director also testified that when she had arrived at that meeting she had tried to talk to I.R., but it had been obvious that I.R. did not wish to reach any compromise; she was ready only “to fight ( kovoti )” and “to go until the end ( eiti iki galo )”. No constructive solution could be reached, even though psychological assistance was offered to I.R. The director also stated that she had heard comments that I.R. was about “to harm herself and [the second applicant] ( pakenkti sau ir vaikui )”, and had therefore suggested to the child care authorities that they talk to I.R. about those intentions. The director stated that the bailiff had arrived at the child care authority premises at 2.15 p.m., as scheduled. 121. When questioned by the prosecutor as a suspect, the first applicant testified that he had arrived in Lithuania on 24 September 2008. Initially he had been able to see his daughter on a daily basis, but after ten days I.R. had forbidden him to see her, and for two weeks he had had no contact with his daughter. Afterwards, with the help of the child care authority and at its premises, the first applicant had succeeded in seeing his daughter for two hours a day for three days, but I.R. had always been present in the room during those meetings. He pointed out that he was the person who had sole custody rights over their daughter, but that he was unable to reach a friendly agreement with I.R., who submitted complaints against the bailiff. The first applicant also stated that he had taken seriously I.R.’s threat that she could do something to herself or the second applicant and that he therefore felt he had to act. 122. The first applicant also stated that he had liaised with the bailiff over how the second applicant’s transfer should take place on 20 October 2008. However, after seeing I.R., he had thought that things might escalate out of control. He had therefore decided to leave the child care authorities’ premises with his daughter when the opportunity arose, and without waiting for the bailiff. He had thus taken her to his car, where he had clothes for her. The applicant stated that his goal had been to leave Lithuania and to return to his home in Germany, which he reached on 21 October 2008. According to him, throughout that time the second applicant had felt all right ( sekėsi gerai ). Lastly, he stated that after their return to Germany I.R. had asked the German prosecutors and the child care authorities to arrest the first applicant and to return their daughter to her, but in April 2009 the Oranienburg first ‑ instance court had held that the first applicant had sole custody rights and that it would not be in the best interests of the second applicant if she were to return to her mother. 123. When questioned as a witness, I.R. testified that when the first applicant was seeing their daughter during the arranged meetings in autumn 2008, she had not told the girl that she would have to go to Germany to live with her father. She also admitted that she had not visited the psychologists so that she could prepare the child for life with her father. I.R. also stated that she had been shocked by the developments on 20 October 2008 when the first applicant had taken their daughter away. She had suffered a lot due to the fact that the girl had been torn away from her. I.R. acknowledged that the child had not been prepared for the transfer to her father. It would have been easier for her if she had known that the girl had been psychologically prepared. 124. The representative of the Klaipėda child care authority testified that she had taken part in the meeting of 20 October 2008. Both parents and the girl had been in one room. She had witnessed how the girl communicated with her father, noting that they “communicated nicely, chatted and somehow understood each other ( vaikas su tėvu gražiai bendravo, čiauskėjo, kažkaip suprato vienas kitą )”. At some point the representative of the child care authority asked I.R. to leave the room where the two applicants were and to come into her office, because the psychologist had arrived. She and the psychologist had then tried to find out from I.R. what she had in mind when she said that she would “go until the end”. I.R. replied that she wanted to do everything by lawful means, and that her lawyers were “preparing new papers” ( ruošia naujus raštus ). The representative and the psychologist understood that I.R. had some kind of unused means at her disposal. I.R. had talked very briefly and had been tense. The representative also noted that the psychologist had not observed the child during the meeting of 20 October 2008, because there had been no time for that. Everything had happened very fast. The representative considered that the action of taking away a child and putting her into a car, with the mother then running after her, was tantamount to kidnapping. 125. By a decision of 24 November 2009 the Klaipėda City District Prosecutor discontinued the criminal proceedings against the first applicant. The prosecutor firstly noted the Oranienburg District Court’s decisions of 14 August 2006 and 20 June 2007 granting the first applicant custody of the second applicant and ordering I.R. to return the girl, and secondly the Lithuanian Court of Appeal ruling of 15 March 2007 (see paragraph 19-21 above) ordering I.R. to return the second applicant to her father. It followed that the second applicant had been living at her mother’s home unlawfully. Lastly, the prosecutor also noted the Supreme Court’s ruling of 25 August 2008, rejecting the Prosecutor General’s and I.R.’s requests to reopen civil proceedings (see paragraphs 106 and 107 above). The prosecutor also relied on the psychological expert report ( psichologinė ekspertizė ) of unspecified date which she had received from Germany, which she then recited in the decision: “The sudden separation of the second applicant from her mother as well as the sudden change of her place of residence had led to a reaction of sadness ( liūdesio reakcija ), which was normal for her age as she had been separated from persons close to her. However, Luisa had survived the move and the changes well; she had also received assistance. Therefore there was no long-term or traumatic impact resulting from that separation. Luisa had also borne the changes in her move to her father well. Her acclimatisation had been further eased by her capacity to learn and the presence of persons whom she had known from childhood, especially her father and her nanny, as well as her regular contact with her mother. She had learned the German language quickly and fully. Although she had been stressed during her trip to Germany, an interpreter and her father, who had always been next to her, had helped her. There were no residual consequences of that stressful event. Luisa’s physical and mental state was very good. She was a self-confident, happy and smart girl with the capabilities, knowledge and interests which were characteristic for her age. There were no indications that she had any emotional or behavioural issues or other psychological problems. Luisa’s social development, including her behaviour when interacting with others, in all areas corresponded to that of other children of her age. Luisa had fully integrated into her living environment.” 126. The prosecutor also found that the first applicant’s actions of 20 October 2008 had not constituted a crime under Articles 156 § 2 or 294 § 2 of the Criminal Code. On the basis of the case file materials, including video recordings by journalists which showed how the first applicant had taken the girl from the premises of the Klaipėda child care authority and put her into the car, and also witness testimony, the prosecutor found that the first applicant had carried the girl in his arms. However, there was no proof that physical coercion had been used against her. In fact, given that the first applicant had custody rights over the girl, he in fact had the right to take her in his arms and carry her. The prosecutor pointed out that the first applicant had communicated with the child previously and had therefore not been a stranger or an unfamiliar person to her. When being carried out of the building in the first applicant’s arms, the girl had not cried or screamed or otherwise indicated that she was being taken by force. One of the witnesses testified that she had started screaming when she saw her mother running after her and the first applicant, but that had been a normal response to her mother’s reaction. The other witnesses testified, and the video recordings also showed, that the first applicant had calmed the child down after putting her in the car. 127. In setting out the reasons for discontinuing the criminal proceedings against the first applicant, the prosecutor also noted that, according to the bailiff, it had been planned to execute the court decision ordering the girl’s transfer on 20 October 2008 at 2.15 p.m. Moreover, it was apparent from both the bailiff’s and the first applicant’s testimonies, as well as from the execution file that from the outset the first applicant had sought to have the court decisions executed lawfully and peacefully. In order to avoid forcible execution of the court decision, he had made the offer to I.R. that he would voluntarily execute the court decision and alleviate all issues ensuing from that execution. The first applicant had also offered, on his own initiative, to cover I.R.’s travel costs to Germany, and to provide her with a place to live and financial support; she had also been provided with a job offer in Germany. However, I.R. had not accepted the first applicant’s offer. Furthermore, the first applicant had also sought to communicate with the child, so that the connection between the father and child would be restored, but I.R. had put obstructions in the way. As confirmed by the child care employees, I.R. had disregarded the agreement that had been signed at the bailiff’s office on 25 September 2008 obliging her to allow the first applicant to communicate with his daughter for four hours per day. According to the testimony of a psychologist from the Klaipėda Pedagogical Psychological Service, the first applicant had consulted her about how best to communicate with the child and how to establish closer contact with her, so that she would be traumatised as little as possible. Such actions on the part of the first applicant showed that he had sought goodwill and lawful execution of the court decision, so that as little harm as possible would be caused to the child. Moreover, the case file also showed that the first applicant had made preparations for the lawful transfer of the child, ensuring that everyone who had to take part in the transfer would be present at the child care authority premises, where the court decision should have been executed. All this showed that he did not have a premeditated intention to execute the court decision as he saw fit. 128. Lastly, turning to the behaviour of I.R., the prosecutor pointed out that during the proceedings concerning the execution of the court decision she had concealed her place of residence, which she shared with the child, and had also appealed against all the actions of the bailiff. According to I.R.’s own testimony, she had not been preparing the child for her return to Germany, nor had she visited psychologists so that the girl could be prepared for going to live with her father. The prosecutor also noted I.R.’s statement to journalists when asked what she planned to do when the time came for her daughter to go to Germany, namely “There are various ways. We will be together with Luisa. I will fight until the end”. For the prosecutor, this showed that I.R. had no intention of executing the court decision and returning the child to her lawful custodian. That being so, it had to be concluded that the first applicant had not caused major damage to I.R., who had no custody rights. 129. In the light of the above the prosecutor concluded that the first applicant had good reason to consider I.R.’s actions as unlawful. Even so, he had not undertaken any extreme or violent measures against her. In fact, it had been the actions of I.R. that had been obstructive and provocative, since she had prevented the first applicant from properly taking care of his child. The prosecutor also concluded that the first applicant’s actions on 20 October 2008 were to be considered as spontaneous, taken so as to avoid calamity and physical violence which would only have harmed the child’s interests or prevented the execution of the court decision. Even if the child had been taken away suddenly and might have been stressed during the journey, the psychological report ruled out any negative and lasting consequences of the action, and currently her situation was deemed very good. From that it followed that the first applicant had not caused harm to the second applicant either. | This case concerned a German father’s efforts to return his daughter from his former Lithuanian wife after court orders in his favour. The applicants – father and daughter – complained in particular about the Lithuanian authorities’ handling of the proceedings for the child’s return to Germany. |
1,068 | Right to a fair trial (Article 6 of the Convention) | THE CIRCUMSTANCES OF THE CASE 9. The applicant is an Italian citizen, born in 1947 and living in Oristano (Italy). 10. The applicant and another person transferred land, property and a sum of money to a limited liability company, A., which the applicant had just formed and of which he owned – directly and indirectly – almost the entire share capital and was the representative. The company, whose object was organising farm holidays for tourists ( agriturismo ), applied to the tax authorities for a reduction in the applicable rate of certain taxes payable on the above-mentioned transfer of property, in accordance with a statute which it deemed applicable, and paid the sum it considered due. 11. The present case concerns three sets of proceedings. The first concerned in particular the payment of capital-gains tax ( INVIM, imposta sull’incremento di valore immobiliare ) and the two others the applicable rate of stamp duty, mortgage-registry tax and capital-transfer tax ( imposta di registro, ipotecaria e voltura ), and the application of a reduction in the rate. 12. In the first set of proceedings, the tax authorities served a supplementary tax assessment on the applicant on 31 August 1987 on the ground that the property transferred to the company had been incorrectly valued. They requested payment of an aggregate sum of 43,624,700 Italian lire comprising the tax due and penalties. On 14 January 1988 the applicant applied to the Oristano District Tax Commission for the supplementary tax assessment to be set aside. In a letter of 7 February 1998 the District Tax Commission informed the applicant that a hearing had been listed for 21 March 1998. In the meantime, on 23 February 1998, the tax authorities informed the commission that they accepted the applicant’s comments and requested the case to be struck out of the list. In a decision of 21 March 1998, the text of which was deposited on 4 April 1998, the District Tax Commission struck the case out of the list. 13. In the other two sets of proceedings, the tax authorities served two supplementary tax assessments on A. on 16 November 1987 on the ground that the company was ineligible for the reduced rate of tax to which it had referred. The tax authorities’ note stated that the company would be liable to an administrative penalty of 20% of the amounts requested if payment was not made within sixty days. On 15 January 1988 the applicant, acting in his own right, although the matter concerned the company A., lodged two applications with the Oristano District Tax Commission for the above-mentioned supplementary tax assessments to be set aside. In two letters of 20 March 1998 the District Tax Commission informed the applicant, in his capacity as representative of A., that a hearing had been listed for 9 May 1998 in the two other cases. In two orders of that date the District Tax Commission adjourned the cases sine die and gave the applicant thirty days in which to appoint a lawyer. Subsequently, a hearing was listed for 24 April 1999. In two decisions of 22 May 1999, the text of which was deposited at the registry on 16 July 1999, the District Tax Commission dismissed A.’s applications on the ground that the transferred property, which included, among other things, a swimming pool and a tennis court, could not be regarded as the normal assets of an agricultural company. On 27 October 2000 A. lodged an appeal with the Regional Tax Commission. | The company of which the applicant was the representative applied to the tax authorities for a reduction in the applicable rate of certain taxes for which it was liable. The tax authorities served supplementary tax assessments on the company. The applicant complained of the length of the subsequent tax proceedings. |
930 | Impression of independence | I. the CIRCUMSTANCES OF THE CASE 9. Mr İbrahim Incal, a Turkish national born in 1953, lives in İzmir. A lawyer by profession, he was at the material time a member of the executive committee of the İzmir section of the People’s Labour Party (“the HEP”). That party, which was represented in the National Assembly, was dissolved by the Constitutional Court on 14 July 1993. 10. On 1 July 1992 the executive committee decided to distribute in the İzmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city. The title of the leaflet, of which ten thousand copies were printed, was “To all democratic patriots!”, and the text read as follows: “In the last few days a campaign aimed at ‘DRIVING THE KURDS OUT OF THE CITIES’ has been launched in İzmir against the Kurdish population by a combination of prefecture, security police and town hall. In this campaign İzmir has been designated a pilot-city. The first stage was the operation [against] street traders, stallkeepers and mussel sellers, whom they tried to hide away on the ground that it was necessary to smarten up the city and ease traffic congestion. The purpose of this operation was to impose an ‘economic blockade’ on our, mainly Kurdish, fellow citizens who make their living through these activities, condemning them to destitution and starvation. In this way the masses were to be frightened, oppressed and compelled to return to their province of origin. Before the ‘DRIVING THE KURDS OUT’ campaign began the organisational and psychological ground had already been prepared by leaflets signed by ‘Patriotic inhabitants of İzmir’ and handed out in large numbers for weeks by ‘obscure forces’. These leaflets incited hostility against the Kurdish population in particular and stirred up anti-Kurdish feelings. This led to racist and chauvinistic anti-Kurdish attitudes through propaganda saying: ‘Don’t give employment or housing to the Kurds. Don’t speak to them, don’t let your daughters marry them and don’t marry one yourself. Smash the Kurds.’ That is how the psychological foundations were laid down, the preparations for the future offensives. Although these leaflets were handed out in broad daylight, those responsible – and nobody knows why – were never arrested. But the campaign was by no means limited to the operation against street traders, stallkeepers and mussel sellers. The second prong was ‘Operation shantytown’. The same combination of prefecture, security police and town hall launched the demolition of the squatters’ camps. It began in Yamanlar and Şemikler and continued in Gaziemir, [all] shantytown districts inhabited mainly by Kurds, who, before the elections, were regarded by the parties in favour of the status quo as a source of votes. Those who had encouraged the mushrooming of the shantytowns by dishonestly promising freedom to build in exchange for votes and those who, with the local mafia, had appropriated public land this time set about the ferocious destruction of these huts to oppress and intimidate the Kurds and force them to go back home. The Kurdish and Turkish proletarian people suddenly and without any warning saw the huts they had run into debt to build, with so many sacrifices made by cutting down on their children’s food, collapsing about their ears. That is how they are trying to oppress the Kurdish and Turkish people and drive them into distress and despair. IT’S STATE TERROR AGAINST TURKISH AND KURDISH PROLETARIANS! It is certain that these demolitions, which began in Yamanlar and are still continuing in Gaziemir, will soon spread to İzmir’s other shantytowns. The State is testing the people’s reactions and will to resist by causing various kinds of destruction. Passivity as a form of defence against this devastation has encouraged the State to commit further kinds of destruction. In conclusion: The ‘Driving-the-Kurds-Out policy’ forms part of the SPECIAL WAR being conducted in the country at present against the Kurdish people. It is one of the mechanisms of that war, the way it impinges on the cities. Because the methods used are the same, namely enslavement, violence, terror and oppression through compulsion. It is a psychological war. While, in the country, they are trying to oppress and silence the people through counter-insurgency tactics, special patrols, village guards, the SS [3] decree and every [other] form of State terror, in İzmir they want to achieve the same aim by depriving our fellow citizens of their means of subsistence and in the end by knocking their houses down about their ears. The methods used, although different in form, are in the final analysis mechanisms serving the purposes of the special war. It is the urban form of the special war. TO ALL DEMOCRATIC PATRIOTS! The way to nullify these insults to the cities is to set up NEIGHBOURHOOD COMMITTEES BASED ON THE PEOPLE’S OWN STRENGTH. We call on all Kurdish and Turkish democratic patriots to assume their responsibilities and oppose this special war being waged against the proletarian people. LONG LIVE THE BROTHERHOOD OF NATIONS! STOP THE SPECIAL WAR BEING SPREAD INTO THE CITIES!” 11. By a letter of 2 July 1992, accompanied by a copy of the leaflet in question, the president of the HEP informed the İzmir prefecture of the executive committee’s decision (see paragraph 10 above) and asked for permission to implement it. 12. The İzmir security police, to whom this request had been referred, considered that the leaflet contained separatist propaganda capable of inciting the people to resist the government and commit criminal offences. On 3 July 1992 they asked the Principal Public Prosecutor attached to the İzmir National Security Court (“the public prosecutor”, “the National Security Court”) to state his opinion as to whether the contents of the leaflet contravened the law. 13. On the same day, at the request of the public prosecutor’s office, a substitute judge of the National Security Court issued an injunction ordering the seizure of the leaflets and prohibiting their distribution. The police searched the HEP’s premises in İzmir, first at the headquarters, where the party leaders handed over, without demur, nine thousand copies of the leaflet which were still parcelled up, and then at the Buca district office, where the thousand remaining copies were seized. 14. Still on 3 July 1992 the public prosecutor’s office opened a criminal investigation against the HEP’s local leaders and the members of its executive committee, including the applicant. 15. On 27 July 1992 the public prosecutor instituted criminal proceedings in the National Security Court against the applicant and the other eight members of the HEP committee who had taken part in the decision of 1 July 1992 (see paragraph 10 above). Citing the text of the leaflet, he accused them of attempting to incite hatred and hostility through racist words and asked the court to apply Articles 312 §§ 2 and 3 of the Criminal Code, section 5 of the Prevention of Terrorism Act (Law no. 3713) and additional section 4 of the Press Act (Law no. 5680) (see paragraphs 21, 23 and 24 below). He also asked the court to order confiscation of the leaflets. 16. On 9 February 1993 the National Security Court, composed of three judges, one of whom was a member of the Military Legal Service, found the applicant guilty of the offences charged and sentenced him to six months and twenty days’ imprisonment and a fine of 55,555 Turkish liras. It also ordered the confiscation of the leaflets and disqualified him from driving for fifteen days. In its interpretation of the wording of the leaflet, the National Security Court accepted the public prosecutor’s oral submissions entirely, except for that part which related to the applicability of the Prevention of Terrorism Act (Law no. 3713). It noted in particular that the leaflet suggested recourse to resistance against the police and the establishment of “neighbourhood committees”, which it held to be illegal forms of protest. It further held that the offence had been intentionally committed, since the accused had not contested either the existence or wording of the text on which the charge was based. With regard to the severity of the sentence, it observed that although commission of the offence through the medium of print was an aggravating circumstance, it was necessary to take into account the accused’s good faith and the fact that the authorities had been able to lay hands on the leaflets before they had been distributed. 17. On 9 March 1993 the applicant and the other convicted persons appealed to the Court of Cassation. In their notice of appeal they asked for a public hearing to be held and challenged the National Security Court’s interpretation of the leaflet and its refusal to commute the prison sentence to a fine. 18. On 20 May the Principal Public Prosecutor attached to the Court of Cassation forwarded the case file together with an opinion couched in a standard form of words – which was not communicated to Mr Incal – asking the court to uphold the judgment. 19. In a judgment of 6 July 1993 the Court of Cassation upheld all the operative provisions of the impugned judgment, after observing that, regard being had to the nature and length of the sentence imposed at first instance, it was not necessary to hold a hearing. 20. On 23 August 1993 the prosecuting authorities decided, at the applicant’s request, to stay execution of the prison sentence for four months. | The applicant, who was convicted for participating in the preparation of a leaflet inciting to hatred and hostility, submitted in particular that he had not had a fair trial before the National Security Court which, he submitted, could not be regarded as an independent and impartial tribunal. |
608 | Wearing of religious symbols or clothing in a courtroom | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and lives in Gornja Maoča. 6. On 28 October 2011 Mr Mevlid Jašarević, a member of the local group advocating the Wahhabi/Salafi version of Islam (see, concerning this group, Al Husin v. Bosnia and Herzegovina, no. 3727/08, § 20, 7 February 2012), attacked the United States Embassy in Sarajevo. One police officer was severely wounded in the attack. In April 2012 Mr Jašarević and two other members of the group were indicted in relation to that event. Mr Jašarević was eventually convicted of terrorism and sentenced to fifteen years’ imprisonment. The other two defendants were acquitted. The relevant part of the first-instance judgment rendered in that case, depicting the religious community to which the applicant also belonged, reads as follows: “In his Report/Findings and Opinion and at the main trial, the expert witness Prof. Azinović clarified the notions of ‘Wahhabism’ and ‘Salafism’ from a scientific perspective : ‘... Salafi communities in Bosnia and Herzegovina, like the one in Gornja Maoča (in which the accused lived at the time of the attack), are often isolated and inaccessible. The choice of remote and isolated locations to establish settlements is often informed by the belief that true believers who live in a non-believer (or secular) country need to resort to hijrah – emigration or withdrawal from the surrounding (non-believers’) world, following the example set by the Prophet Muhammad and his followers, who moved from Mecca to Medina in 622 to establish the first Muslim community. Despite mutual differences, most of the Bosnian Salafi groups share some common traits that are not inherent in Islamic organisations (or religious sects) only. In practice, they confirm the tendencies of certain traditional religious communities to isolate from other believers and define their holy community through their disciplined opposition to both non-believers and half-hearted believers. This pattern is inherent in fundamentalist movements and sects within almost all religious traditions. Such movements as a rule have similar characteristics despite the differences in theological doctrines, size and social composition, the scope of their influence or their tendency towards violence. Yet these fundamentalist and puritan groups mostly do not encourage or approve violence, whether it is aimed against members of the same group or against the outer world. According to the available sources and their own declarations, members of the community in Gornja Maoča oppose the concept of a secular State, democracy, free elections and any laws that are not based on Sharia. The positions taken by this group are, inter alia, available at a number of web sites, including www.putvjernika.com, while part of its followers live in Serbia, Croatia, Montenegro, Slovenia, Austria, Germany, Switzerland, Australia and other countries.’ ... 6.1.5.1 Punishment of the accused (Article 242 of the Code of Criminal Procedure) Having been called by the court officer to stand up when the Trial Chamber entered the courtroom at the first hearing, the accused refused to do so. Also, the accused Jašarević and Fojnica were wearing skullcaps, which the Court could correlate with clothing details indicating their religious affiliation. Pursuant to Article 256 of the Code of Criminal Procedure, all those present in the courtroom must stand up upon the call from a court officer. The President of the Trial Chamber asked the accused to explain both their refusal to stand up and the reasons why they had entered the courtroom wearing skullcaps. The accused stated that they only respected Allah’s judgment and that they did not want to take part in rituals acknowledging man-made judgment. The Court thereupon warned the accused that standing up was a statutory obligation of the accused and that under Article 242 § 2 of the Code of Criminal Procedure, disruptive conduct constituted contempt of court, which the Court would punish by removing them from the courtroom. After the warning, the President adjourned the hearing and provided the accused with a reasonable period of time to consult their attorneys in order to change their minds. When the Trial Chamber returned to the courtroom, the accused did not stand up, and therefore the President removed them from the courtroom. The transcript from the hearing was subsequently delivered to the accused. At a new hearing, the accused Fojnica and Ahmetspahić again did not want to stand up on being called by the court officer, while the accused Jašarević refused to enter the courtroom. The President therefore asked the accused to respond whether it was their definite decision to act in the same way until the completion of the trial. The accused confirmed that, until the completion of the trial, they had no intention of showing any respect, by standing up, for the Court, which they did not recognise. The Court found that to continue to bring the accused to scheduled hearings would unnecessarily expose the Court to significant expense. Therefore, the Court decided to remove the accused from the trial until its completion, with a warning that they would be notified of any scheduled hearing, and that, prior to it, they could notify the Court if they changed their mind, in which case the Court would allow them to come to the hearing. The accused Fojnica and Ahmetspahić then changed their mind and regularly appeared before the Court, while the accused Jašarević did so only at the following hearing. The Court delivered to the accused the audio-recordings and the transcripts from the hearings they had not attended in order to allow them to agree with their defence attorneys on their defence strategy .” 7. In the context of that trial, the Court of Bosnia and Herzegovina (“the State Court”) summoned the applicant, who belonged to the same religious community, to appear as a witness on 10 September 2012. He appeared, as summoned, but refused to remove his skullcap, notwithstanding an order from the president of the trial chamber to do so. He was then expelled from the courtroom, convicted of contempt of court and sentenced to a fine of 10,000 convertible marks (BAM) [1] under Article 242 § 3 of the Code of Criminal Procedure. The relevant part of that decision reads as follows: “The Court has examined the situation encountered in the courtroom with the utmost care. The Court is aware that the witness belongs to a religious community, organised under special rules in the village of Maoča, of which the accused are also members. In view of that, the Court has acquainted the witness with the provisions of Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina and the obligations of the parties in the judicial institutions, which ban visitors from entering these buildings in clothing that is not in accordance with the generally accepted dress codes within the professional environment of the judicial institutions. In addition, the Court has pointed out to the witness that, in public institutions, it is not acceptable to display religious affiliation through clothing or religious symbols, and that the Court is obliged to support and promote values that bring people closer, not those that separate them. The Court has particularly emphasised that the rights of the individual are not absolute and must not jeopardise common values. The witness’s attention has especially been drawn to the fact that people of various religious beliefs, belonging to different religious groups, appear before the court and that it is necessary to have confidence in the court. Thus, the court is not a place where religious beliefs can be expressed in a way that discredits certain common rules and principles in a multicultural society. That is why the law obliges everyone who appears before the Court to respect the Court and its rules. The Court finds the witness’s refusal to accept the rules of court and to show respect to the Court by accepting its warnings, to be a flagrant breach of order in the courtroom. The Court has found that this behaviour is connected to a number of other identical cases before it, in which the members of the same religious group behaved in the same manner, publicly indicating that they did not recognise this Court. The frequency of such disrespectful behaviour and contempt of court is producing dangerous criminogenic effects and undoubtedly presents a specific threat to society. It is not necessary to particularly substantiate how this behaviour impairs the Court’s reputation and confidence in the Court. A legitimate conclusion may be that it is essentially directed against the State and basic social values. Therefore, a severe and uncompromising reaction on the part of the State, taking all existing repressive measures, is crucial for dealing with such behaviour. Restraint on the part of the State in cases of this or other types of extremism can have serious consequences for the reputation of the judiciary and the stability of society in Bosnia and Herzegovina. Bearing in mind the frequency, seriousness and gravity of this type of breach of order in the courtroom and its damaging consequences, the Court has decided to punish the witness by imposing the maximum fine of BAM 10,000. Such a severe penalty should be a message to all the parties in the courtroom that contempt of court is unacceptable. The Court must be respected and the level of respect for the Court is the same as for the State of Bosnia and Herzegovina.” 8. On 11 October 2012 an appeals chamber of the same court reduced the fine to BAM 3,000 and upheld the rest of the first-instance decision. It held that the requirement to remove any and all headgear on the premises of public institutions was one of the basic requirements of life in society. It further held that in a secular State such as Bosnia and Herzegovina, any manifestation of religion in a courtroom was forbidden. The relevant part of that decision reads: “The Chamber observes that it is obvious and well known that skullcaps, hats and other headgear should be removed when entering any premises, and notably the premises of State and other public institutions, as there is no longer a need to wear them and removing a skullcap or a hat is an expression of respect for this institution and its function. The duty to remove headgear exists not only in this court but also in other courts and institutions in Bosnia and Herzegovina as well as in other States. Such rules and duties apply to all persons without exception, regardless of religious, sexual, national or other affiliation. Indeed, this is a duty of all those who visit the State Court in whatever capacity, as explained in more detail in Rule 20 of the House Rules of the Judicial Institutions of Bosnia and Herzegovina: ‘Visitors must respect the dress code applicable to judicial institutions. Visitors shall not wear miniskirts, shorts, t-shirts with thin straps, open heel shoes and other garments that do not correspond to the dress code applicable to judicial institutions’. It would appear from the case file that the judge in charge of this specific case first directed the witness to remove his skullcap in the courtroom, and then gave him an additional ten minutes to think about it as well as about the consequences of rejecting that order. As the witness had nevertheless failed to remove his skullcap, showing thereby wilful disrespect for the authority of the court, the President of the Trial Chamber fined him in accordance with Article 242 § 3 of the Code of Criminal Procedure. It follows from the aforementioned that the judge in charge did not invent the duty of removing the skullcap when addressing the court, as claimed in the appeal. This is indeed a matter of a generally accepted standard of behaviour in the courtroom which applies not only to this Court but also to other courts; furthermore, it has always been applied. This duty stems from Rule 20 of the House Rules of the Judicial Institutions cited above. Therefore, the allegations made by the lawyer Mulahalilović in the appeal are not only unjustified but totally inappropriate. The allegation in the appeal that the witness was punished simply because he was a believer who was practising his religion, and that he had thereby been discriminated against, is also unsubstantiated. The duty of removing headgear and behaving decently applies without exception to anyone visiting the court premises. All persons visiting the Court, regardless of their religion, nationality, sex or other status, have the same rights and obligations and are obliged, among other things, to remove their skullcaps, hats and other headgear. This was explained to the witness. Any behaviour to the contrary has always been interpreted and is still interpreted as disrespectful towards the court, and the appellant is aware of that. Bosnia and Herzegovina, as mentioned in the impugned decision, is a secular State in which religion is separate from public life. The Chamber therefore holds that the premises of the Court cannot be a place for the manifestation of any religion. It clearly follows from the aforementioned that the witness Husmet Hamidović was not deprived of his right to freedom of religion and freedom to manifest religion at his home or any other place dedicated for that purpose, but not in the courtroom. Therefore, the allegations by the lawyer Mulahalilović of a violation of the rights guaranteed by the Constitution and the European Convention on Human Rights, and of discrimination on religious grounds, are unsubstantiated. Having found that the witness’s punishment was justified and that his appeal was ill-founded in that part, the Appeals Chamber then examined the amount of the fine and decided that it was excessive. As noted in the appeal, BAM 10,000 is the maximum fine for contempt of court. The maximum fine should be imposed in the most serious cases. Turning to the relevant criteria, the nature and the seriousness of the conduct must certainly be taken into consideration. However, the appellant is wrong in claiming that his means should have also been taken into account, as the fine for contempt of court is not a criminal sanction, but is of a disciplinary nature. While the witness showed a high level of determination in disrespecting the court (he again failed to remove his skullcap after a pause of ten minutes given to him to reflect) and this fact definitely affected the amount of the fine, the act itself (failure to remove headgear) is not the most serious case of contempt of court which would justify the maximum fine. Since the witness did not use offensive language, there was no need to impose the maximum fine. This is notwithstanding the fact that members of the same religious group have lately shown a pattern of disrespectful behaviour. While it is true that the general prevention is one of the aims of sanctions, including disciplinary ones, disciplinary sanctions are primarily directed at individuals. Everyone should therefore be held responsible and adequately punished for his/her conduct only, and not for that of other members of any group. This follows from Article 242 § 3 of the Code of Criminal Procedure. In the circumstances of this case, and having regard to the nature and the intensity of contempt of court committed by this witness, the appeals chamber finds that a fine in the amount of BAM 3,000 is appropriate. The appeal by the lawyer Mulahalilović is therefore partially accepted and the impugned decision amended.” 9. As the applicant had failed to pay the fine, on 27 November 2012 the fine was converted into thirty days ’ imprisonment pursuant to Article 47 of the Criminal Code. That decision was upheld on 13 December 2012 and the applicant served his prison sentence immediately. 10. On 9 July 2015 the Constitutional Court of Bosnia and Herzegovina found no breach of Articles 9 and 14 of the Convention, fully accepting the reasoning of the State Court. At the same time, it found a breach of Article 6 of the Convention because of the automatic way in which fines were converted into imprisonment and ordered that Article 47 of the Criminal Code of Bosnia and Herzegovina be amended. However, it decided not to quash the decision converting the fine into imprisonment in this case, relying on the principle of legal certainty. The relevant part of the majority decision reads as follows: “40. The Constitutional Court notes that the present case concerns a specific situation where the universally accepted standard of conduct in a judicial institution intertwines with the right of the appellant to manifest in a courtroom, contrary to that standard, affiliation with his religious community. The appellant claims that the State Court did not have a basis in law for imposing a fine for his failure to comply with a court order, as the Code of Criminal Procedure does not contain a provision prescribing any such measure, for which reason his right to freedom of thought, conscience and religion was violated. 41. Starting from the main objection raised by the appellant, that the limitation in the case at hand was not prescribed by law, the Constitutional Court notes that the European Court ( The Sunday Times v. the United Kingdom ( no. 1), 26 April 1979, § 49, Series A no. 30) has held that two requirements flow from the expression ‘prescribed by law’ in Article 9 of the European Convention. ‘Firstly, the law must be adequately accessible: the citizen must be able to have an indication that is adequate in the circumstances of the legal rules applicable to a given case. Secondly, a norm cannot be regarded as a ‘law’ unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail.’ In addition, the wording of many statutes is not absolutely precise. The need to avoid excessive rigidity and to keep pace with changing circumstances means that many laws are inevitably couched in terms which, to a greater or lesser extent, are vague. The interpretation and application of such enactments depend on practice (see Kokkinakis, cited above). 42. Accordingly, as concerns the issue of whether the State Court, in adopting the challenged ruling, acted in accordance with the law, the Constitutional Court observes that the provision of Article 242 § 3 of the Code of Criminal Procedure provides that the judge or the presiding judge may order that a party to the proceedings who disrupts order in a courtroom or disobeys court orders be removed from the courtroom and be fined in an amount of up to BAM 10,000. The Constitutional Court also observes that the cited provision, on which the State Court relied, does not prescribe a list of all types of conduct which may be regarded as disruption of order in a courtroom, but rather each court, in the circumstances of a given case, decides whether some type of conduct may be considered disruptive or not, which falls within the scope of that court’s margin of discretion (see the Constitutional Court decision no. AP 2486/11 of 17 July 2014, § 33). This is a universally accepted standard of conduct of the courts in Bosnia and Herzegovina, which is in accordance with the position of the European Court, referred to in the Kokkinakis judgment, that the interpretation and application of such enactments that are couched in vague terms depend on practice. 43. The Constitutional Court notes that the State Court relied also on Rule 20 of the House Rules, providing that ‘visitors must respect the dress code applicable to judicial institutions’, as an internal act of the State Court and other judicial institutions. The Constitutional Court observes likewise that the mentioned provision does not specify what that dress code is. However, the State Court in the case at hand kept in mind that the universally accepted standard of conduct in a civilised society required that upon entering the premises of a public institution one should remove one’s headgear out of respect for that institution and its function. Likewise, the Constitutional Court is aware that the said House Rules were not published, but that is not a problem since the present case concerns a universally accepted and usual standard of conduct in a judicial institution in a civilised and democratic society that Bosnia and Herzegovina aspires to become. The Constitutional Court also holds that the standard in issue could and should have been known to the appellant. In addition, the Constitutional Court observes that the State Court clearly and unequivocally warned the appellant of that universally accepted standard of conduct, which is indeed mandatory for all visitors of judicial institutions, irrespective of their religion, sex, national origin or other status. 44. Moreover, the State Court clearly warned the appellant of the consequences of such conduct and, although it was not required to do so, accorded him an additional time to reconsider his position. This is clearly in accordance with the stance taken by the European Court in relation to the notion ‘prescribed by law’ ( The Sunday Times, cited above). Indeed, the State Court clearly and unequivocally informed the appellant of the applicable rules in the judicial institutions and of the consequences of disobeying the rules. Moreover, at his own request, the appellant was granted additional time to think about all this. The Constitutional Court especially emphasises the fact that the limitation in question applied only while the appellant was in the courtroom, that is, during his testimony before the State Court. The Constitutional Court holds that the State Court did not thereby place an excessive burden on the appellant, given that it simply requested that the appellant adjust his conduct to the House Rules, which applied to all visitors, and only in the courtroom. Bearing in mind all the aforementioned, the Constitutional Court holds, in the circumstances of this particular case, that the State Court, using the margin of discretion referred to in Article 242 § 3 of the Code of Criminal Procedure, acted in accordance with the law, and that, contrary to the appellant’s opinion, the interference, which was of a limited nature, was lawful. 45. As to the question whether the interference in the present case had a legitimate aim, the Constitutional Court notes that the State Court simply relied on a universally accepted standard of conduct in a judicial institution, which requires all the visitors of judicial institutions to respect ‘the dress code applicable to judicial institutions’. That court further relied on the inadmissibility of the manifestation in public institutions of religious affiliation and religious symbols which were contrary to the usual standards of conduct, and in so doing it took into account its obligation to support the values that bring people closer and not those that separate them. The Constitutional Court notes that the State Court underlined in that regard that Bosnia and Herzegovina was a secular State where religion was separated from public life and that therefore no one could manifest his/her religion or religious affiliation in a courtroom. Considering the position of the European Court that in democratic societies in which several religions coexist (as is the case of Bosnia and Herzegovina) it may be necessary to place restrictions on the freedom of religion ( Kokkinakis, cited above), in the context of the obligation of an independent judicial institution to support the values that bring people closer, and not those that separate them, the Constitutional Court holds that the restriction in the present case, which was of a temporary nature, aspired to achieve legitimate aims. Finally, the Constitutional Court reiterates that Article 242 § 3 of the Code of Criminal Procedure is primarily designed to allow the State Court unhindered and effective conduct of proceedings. A judge or the president of a chamber is thereby given the possibility of imposing a fine for any inappropriate behaviour which is directed at disrupting order in a courtroom or at damaging the reputation of the State Court. In the present case, the State Court considered the repeated refusal of the appellant to comply with an order of the court to be damaging to the reputation and the dignity of a judicial institution. Therefore, the Constitutional Court finds that the restriction in issue, which was of a limited nature, was in accordance with the legitimate aim of maintaining the dignity of a judicial institution for the purposes of Article 9 of the European Convention. 46. Finally, as to the question whether the decision was necessary in a democratic society in order to achieve one of the legitimate aims under Article 9 of the European Convention, the Constitutional Court reiterates that, according to the settled case-law of the European Court, the Contracting States have a certain margin of appreciation in assessing the existence and extent of the need for interference, but this margin is subject to European supervision, embracing both the law and the decisions applying it, even those given by independent courts ( Dahlab, cited above). Furthermore, under the well-established case-law of the European Court, the Court is called upon to establish whether the measures undertaken at the national level were justified in principle – that is, whether the reasons given by the national authorities to justify them were ‘relevant and sufficient’ and whether the measures were proportionate to the legitimate aim pursued ( The Sunday Times, cited above, § 50 [2] ). 47. The Constitutional Court notes that the appellant was fined for contempt of court; that is, for his failure to respect an order of the State Court to remove his skullcap in the courtroom. The Constitutional Court further notes that the first-instance decision imposed a fine in the amount of BAM 10,000, but that the second-instance decision reduced the fine to BAM 3,000. The Appeals Chamber held that the fine set in the first-instance decision was excessive, and taking into consideration all the circumstances of the case, it concluded that a fine in the amount of BAM 3,000 was appropriate. The Constitutional Court observes that the State Court acted in this case in accordance with its margin of discretion, accorded by Article 242 of the Code of Criminal Procedure enabling the courts to fine participants in proceedings who refuse to obey court orders, with a view to conducting proceedings efficiently and maintaining the authority and dignity of courts. The Constitutional Court took into account the fact that owing to his failure to pay the fine, the appellant’s fine was converted to a prison sentence pursuant to Article 47 of the Criminal Code. However, the Constitutional Court will examine that factor in the following paragraphs of this decision concerning the right to a fair trial. Therefore, in view of the above and the circumstances of this particular case, the Constitutional Court holds that the impugned restriction did not constitute an excessive burden for the appellant, that the measure undertaken by the State Court pursued legitimate aims within the meaning of Article 9 of the European Convention, and that there was a reasonable relationship of proportionality between the restriction and the legitimate aim pursued. 48. Accordingly, the Constitutional Court concludes that the impugned decision did not breach the appellant’s right to manifest his religion under Article II § 3 (g) of the Constitution of Bosnia and Herzegovina and Article 9 of the European Convention.” 11. Two out of the eight judges of the Constitutional Court appended dissenting opinions. They disagreed with the majority as concerns Articles 9 and 14 of the Convention. In particular, given that the applicant had appeared as summoned and had stood up while addressing the court, they considered that his conduct had not been disrespectful. They further maintained that, unlike public officials, private citizens, such as the applicant, did not owe a duty of neutrality. Therefore, the applicant’s punishment for refusing to remove a religious symbol in a courtroom constituted, in their opinion, disproportionate interference with his right to freedom of religion. | A witness in a criminal trial, the applicant was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap. He complained in particular that punishing him for contempt of court had been disproportionate. |
769 | Confidentiality of personal information concerning health | A. The circumstances of the case 4. The applicant was born in 1957 and lives in France. 5. On 5 February 1996 the applicant ’ s wife filed a divorce petition with the appropriate tribunal de grande instance. In an interlocutory decision of 26 March 1996, the family-affairs judge, finding that the couple were not reconciled, gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements. The judge granted parental responsibility for the children, who were born in 1985 and 1988, jointly to their father and mother, decided that they should habitually live with their mother and made provisions for the applicant ’ s right of visiting contact. The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family. The welfare report, filed on 9 July 1996, revealed that the applicant was present and active as a father and had developed a sound relationship with his children. It recommended that he be granted broad rights of visiting and staying contact. 6. On 25 September 1996 the applicant ’ s wife brought divorce proceedings against him before the same tribunal de grande instance. She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism. 7. In a judgment of 4 September 1998, the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone, confirmed the interim arrangements indicated in the interlocutory decision, acknowledged the father ’ s poor financial situation and exempted him from child maintenance obligations. It ruled as follows: “The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband ’ s behaviour towards her. Her husband, as she has also shown, suffers from alcoholism, and this may reasonably be said to constitute the primary cause of his behaviour. These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage. It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone. ...” 8. The applicant appealed against the judgment before the appropriate Court of Appeal, requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children. As to the grounds of divorce, he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic. In this connection, he principally requested the exclusion from the case file of a document from his medical records that his wife had, according to him, obtained by fraudulent means and on which she had relied to show that he was an alcoholic. The document in question was an operation report of 2 April 1994 concerning a splenectomy which the applicant had undergone. It had been sent on 20 April 1994 in a letter from Doctor C. ( a specialist in digestive surgery) to the applicant ’ s general practitioner. The applicant claimed, however, that he had never provided his wife with a copy of the document, nor had he released the doctor who signed it from his duty of medical confidentiality in that connection. As to the ancillary arrangements decided by the court below, he considered that the restrictions on his right of contact were unjustified, arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them. The applicant ’ s ex-wife, for her part, reiterated the complaints she had made before the court below. She also denied that she had obtained a medical document fraudulently, alleging that her husband had entrusted her with “the management of paperwork ”, rejected any accusation of violence, and considered that the applicant ’ s demands, in respect of his right of contact, were premature as he was living with his parents and had not yet overcome his drink problem. 9. In a judgment of 21 February 2000, the Court of Appeal upheld the provisions of the judgment appealed against as regards the granting of the divorce, the exercise of parental responsibility and the children ’ s habitual residence, giving the following reasoning: “– The granting of the divorce : ... Whilst certain testimony she has produced, concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings, is very dated and not useful for the proceedings, she has nevertheless submitted to the Court testimony from two of his sisters concerning Mr [L.L.] ’ s alcohol addiction and his resulting aggressiveness. Mr [L.L.] ’ s alcoholism has been confirmed by medical documents and in particular a letter of 20 April 1994 to his general practitioner from Doctor C. – and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘ a bout of acute pancreatitis with a background of alcoholism ’ and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol. Mrs [L.L.] also produced medical certificates dated 26 July 1994, 2 September 1994, 15 September 1994 and 2 February 1996 in which various injuries were recorded – in particular a perforated eardrum – and from which violent acts by the husband must necessarily be inferred, as no other explanations have been suggested by Mr [L.L.]. This conduct ... constitutes a serious and repeated breach of marital duties, leading to an irretrievable breakdown in the marriage, and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife. ...” 10. As regards the applicant ’ s request for the extension of his rights of visiting and staying contact, the court considered it necessary to order, as an interlocutory measure, a medical and psychological report on the family group. After the expert ’ s report had been filed, on an undetermined date, the Court of Appeal, on 7 June 2001, granted the applicant ’ s request and accorded him a right of contact with which he was satisfied. 11. On 14 June 2000 the applicant wrote a letter to the President of the Court of Cassation in which he expressed his intention to appeal on points of law against the judgment of 21 February 2000, considering that the “legislation [had ] not been correctly applied”. As regards the medical documents produced in the case, he criticised the courts that had ruled on his case for using those documents in spite of his protests, and added that such a practice was in breach of the Criminal Code since “ judges [could not] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality ”. 12. For the purposes of his appeal on points of law, the applicant filed a request for legal aid with the Court of Cassation ’ s Legal Aid Board. His request was rejected by the Board on 10 May 2001, then by the President of the Court of Cassation on 11 July 2001, on the ground that “it [did] not appear from an examination of the material in the case file that a ground of appeal on points of law [could] be argued with any real prospect of success”. 13. In the meantime, following a report of ill-treatment filed by the applicant with the Department for Prevention and Social Services, the children ’ s judge at the tribunal de grande instance, on 25 October 2000, initiated the procedure providing, in respect of the couple ’ s children, for a measure of guidance in the home community. That measure was extended on 4 December 2001 for a further one-year period. B. Relevant domestic law and practice 14. At the material time the relevant provisions of the Civil Code read as follows: Article 9 “Everyone has the right to respect for his private life. ...” Article 248 “The proceedings on the cause of action, the consequences of the divorce and on the interim arrangements shall not be public.” Article 259 “ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. ” Article 259-1 “ A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud .” Article 259-2 “ Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life .” 15. Articles 259 and 259-1 of the Civil Code were amended by Law no. 2004-439 of 26 May 2004, which came into force on 1 January 2005. Those Articles now read as follows: Article 259 (as amended) “ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence, including confessions. However, evidence from descendants may never be heard in respect of the complaints submitted by the spouses .” Article 259-1 (as amended) “ A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud .” 16. In divorce proceedings, evidence of the complaints submitted is unrestricted and may be adduced by any means, unless it is shown that it has been obtained by duress or fraud (Article 259-1 of the Civil Code) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic premises (Article 259 ‑ 2 of the Civil Code). In this connection, where, for the purposes of adducing preliminary evidence of a spouse ’ s breach of his or her duty of fidelity, a report establishing adultery has been drawn up by a bailiff, with judicial authorisation, at the domicile of the other party to the adulterous relationship, such an act constitutes lawful interference with private life (Court of Cassation, Second Civil Division, 5 June 1985, Bulletin civil ( Bull. civ. ) no. 111). Similarly, a report drawn up without judicial authorisation, at the request of the husband, on premises of which he has possession, may be taken into consideration by the tribunals of fact (Court of Cassation, Second Civil Division, 14 December 1983). However, having regard to Article 9 of the Civil Code, the Court of Cassation has held that where a person has been spied on, watched and followed for several months, interference with that person ’ s private life, by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person ’ s former spouse, is disproportionate to the aim pursued (Court of Cassation, Second Civil Division, 3 June 2004, Bull. civ. no. 273). Conversely, having regard to Article 259-1 of the Civil Code, a court of appeal which held, on the basis of the evidence which it alone was empowered to assess, that a relationship detrimental to a husband carried on between his wife and a third party could be established by e-mails and by a private investigation report, rightly inferred therefrom, absent any evidence of duress or fraud, that serious and repeated breaches of marital duties were thus substantiated (Court of Cassation, First Civil Division, 18 May 2005, Bull. civ. I no. 213). In the same vein, a private investigation report is admissible when corroborated by other evidence such as comments written in a diary (Court of Cassation, Second Civil Division, 3 March 1983, unreported) or witness statements. As regards letters exchanged between one of the spouses and a third party within the meaning of the former Article 259-1 of the Civil Code, a court, in order to declare inadmissible letters from a wife to third parties, together with her diary, is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress (Court of Cassation, Second Civil Division, 29 January 1997, Juris-classeur périodique 1997, Bull. civ. II no. 28). It has been held, however, that a diary should be declared inadmissible on the basis of Article 8 of the Convention ( Caen tribunal de grande instance, judgment of 9 June 2000). 17. The relevant provisions of the new Code of Civil Procedure read as follows: Article 1440 “ Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant, subject to the exercise of their rights. ” Article 1441 “ In the event of refusal or where no response is obtained, the president of the tribunal de grande instance, or, where the refusal emanates from a registrar, the president of the court to which his office is attached, seised by way of application, shall adjudicate, after hearing representations from the applicant and the registrar or custodian, or after giving them notice to appear. Appeals shall be lodged, examined and determined as in non-contentious matters. ” | The applicant complained in particular about the submission to and use by the courts of documents from his medical records, in the context of divorce proceedings, without his consent and without a medical expert having been appointed in that connection. |
573 | Cases in which the Court found no violation of Article 4 of Protocol No. 4 | I. THE BACKGROUND TO THE CASE 15. The autonomous city of Melilla is a Spanish enclave of 12 sq. km located on the north coast of Africa and surrounded by Moroccan territory. It lies on the migration route from North and sub-Saharan Africa which is also used by Syrian migrants. The border between Melilla and Morocco is an external border of the Schengen Area and thus provides access to the European Union. As a result, it is subject to particularly intense migratory pressure. 16. The Spanish authorities have built a barrier along the 13 km border separating Melilla from Morocco, which since 2014 has comprised three parallel fences. The aim is to prevent irregular migrants from accessing Spanish territory. The barrier consists of a six-metre-high, slightly concave, fence (“the outer fence”); a three-dimensional network of cables followed by a second, three-metre-high fence; and, on the opposite side of a patrol road, another six-metre-high fence (“the inner fence”). Gates have been built into the fences at regular intervals to provide access between them. A sophisticated CCTV system (including infrared cameras), combined with movement sensors, has been installed and most of the fences are also equipped with anti-climbing grids. 17. There are four land border crossing points between Morocco and Spain, located along the triple fence. Between these crossings, on the Spanish side, the Guardia Civil has the task of patrolling the land border and the coast to prevent illegal entry. Mass attempts to breach the border fences are organised on a regular basis. Groups generally comprising several hundred aliens, many of them from sub-Saharan Africa, attempt to enter Spanish territory by storming the fences described above. They frequently operate at night in order to produce a surprise effect and increase their chances of success. 18. Those migrants who do not manage to evade the Guardia Civil, and whom the officials succeed in persuading to come down of their own accord using ladders, are taken back immediately to Morocco and handed over to the Moroccan authorities, unless they are in need of medical treatment (see paragraph 58 below). 19. At the time of the events this modus operandi was provided for only by the Guardia Civil “Border control operations protocol” of 26 February 2014 and by service order no. 6/2014 of 11 April 2014 (see paragraph 37 below). 20. On 1 April 2015 the tenth additional provision of Institutional Law no. 4/2000 of 11 January 2000 on the rights and freedoms of aliens in Spain and their social integration (“the LOEX”) came into force. The additional provision was inserted by means of Institutional Law no. 4/2015 of 30 March 2015 laying down special rules for the interception and removal of migrants in Ceuta and Melilla (see paragraphs 32-33 below). II. THE CIRCUMSTANCES OF THE CASE A. Origins of the case 21. The first applicant was born in 1986 and the second applicant in 1985. 22. The first applicant left his village in Mali on account of the 2012 armed conflict. After spending a few months in a refugee camp in Mauritania and then in Algeria, he arrived in Morocco in March 2013 and reportedly lived in the “informal” migrants’ camp on Mount Gurugu, close to the Melilla border. He stated that there had been several raids by the Moroccan security forces and that he had broken his leg during the summer of 2014 while fleeing from them. 23. The second applicant arrived in Morocco in late 2012 after travelling through Mali. He also stayed in the Mount Gurugu migrants’ camp. B. The events of 13 August 2014 24. On 13 August 2014 two attempted crossings took place, organised by smuggling networks: one at 4.42 a.m. involving 600 people, and another at 6.25 a.m. involving 30 people. The applicants stated that they had taken part in the first of these. They had left the Mount Gurugu camp that day and tried to enter Spain together with their group, scaling the outer fence together with other migrants. According to the Government, the Moroccan police prevented around 500 migrants from scaling the outer fence, but around a hundred migrants nevertheless succeeded. Approximately seventy ‑ five migrants managed to reach the top of the inner fence, but only a few came down the other side and landed on Spanish soil, where they were met by the members of the Guardia Civil. The others remained sitting on top of the inner fence. The Guardia Civil officials helped them to climb down with the aid of ladders, before escorting them back to Moroccan territory on the other side of the border through the gates between the fences. 25. The first applicant stated that he had managed to reach the top of the inner fence and had remained there until the afternoon. The second applicant said that he had been struck by a stone while he was climbing the outer fence and had fallen, but had subsequently managed to get to the top of the inner fence, where he had remained for eight hours. At around 3 p.m. and 2 p.m. respectively the first and second applicants reportedly climbed down from the fence with the help of Spanish law-enforcement officials who provided them with ladders. As soon as they reached the ground they were allegedly apprehended by Guardia Civil officials who handcuffed them, took them back to Morocco and handed them over to the Moroccan authorities. The applicants alleged that they had not undergone any identification procedure and had had no opportunity to explain their personal circumstances or to be assisted by lawyers or interpreters. 26. The applicants were then reportedly transferred to Nador police station, where they requested medical assistance. Their request was refused. They were allegedly taken subsequently, together with other migrants who had been returned in similar circumstances, to Fez, some 300 km from Nador, where they were left to fend for themselves. The applicants stated that between 75 and 80 migrants from sub-Saharan Africa had been returned to Morocco on 13 August 2014. 27. Journalists and other witnesses were at the scene of the attempt to storm the border fences and the subsequent events. They provided video-footage which the applicants submitted to the Court. C. The applicants’ subsequent entry into Spain 28. On 2 December and 23 October 2014 respectively, in the context of further attempts to storm the fences, the first and second applicants succeeded in climbing over the fences and entering Melilla. Two sets of proceedings were instituted against them. The applicants were subsequently issued with expulsion orders. 29. An order for the first applicant’s expulsion was issued on 26 January 2015. He was accommodated in the temporary detention centre for aliens (CETI) in Melilla before being transferred to the Barcelona CETI in March 2015. He lodged an administrative appeal ( recurso de alzada ) against the expulsion order. On 17 March 2015, while this appeal was still pending, the first applicant lodged an application for international protection. His application was rejected on 23 March 2015 on the grounds that it was unfounded and that the applicant was not at risk, as the UNHCR office had issued an opinion on 20 March 2015 finding that the first applicant’s circumstances did not justify granting him international protection. A request for review lodged by the applicant was rejected by a decision of the Interior Ministry’s Asylum and Refugees Office on 26 March 2015, following a further negative UNHCR opinion issued on the same day. The stay of the administrative expulsion proceedings was therefore lifted and the first applicant was sent back to Mali by airplane on 31 March 2015. The previous day an appeal against the decision refusing international protection had been lodged with the administrative courts, but was withdrawn by the applicant’s representative on 15 September 2015. The first applicant’s administrative appeal against the order for his expulsion was declared inadmissible by a decision of 19 May 2015. As no appeal against that decision was lodged with the administrative courts, the order became final on 26 September 2015. According to the first applicant’s account, he has been living in very precarious circumstances since his return to Mali and has no fixed address. 30. An order for the second applicant’s expulsion was issued on 7 November 2014 and was upheld on 23 February 2015 following the dismissal of his administrative appeal ( de alzada ). He was accommodated in the Melilla CETI and in November 2014 was transferred to the Spanish mainland. The order for his expulsion became final on 11 July 2015. The second applicant did not apply for international protection. On expiry of the maximum period of 60 days’ immigration detention he was released. Since then he has apparently been staying unlawfully in Spain, probably in Andalusia and without any fixed address, according to the statements made by his lawyers at the hearing before the Court. 31. Both applicants were represented by lawyers during these proceedings. | This case concerned the immediate return to Morocco of two nationals of Mali and Côte d’Ivoire who on 13 August 2014 attempted to enter Spanish territory in an unauthorised manner by climbing the fences surrounding the Spanish enclave of Melilla on the North African coast. The applicants maintained that they had been subjected to a collective expulsion without an individual assessment of their circumstances and in the absence of any procedure or legal assistance. They complained of a systematic policy of removing migrants without prior identification, which, in their view, had been devoid of legal basis at the relevant time. They also complained of the lack of an effective remedy with suspensive effect by which to challenge their immediate return to Morocco. |
302 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 11. The applicant was born in 1931 and has been living since 1970 in Campione d’Italia, which is an Italian enclave of about 1.6 sq. km in the Province of Como (Lombardy), surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by Lake Lugano. 12. He describes himself as a practising Muslim and a prominent businessman in the financial and political world, in which he purports to be highly regarded. An engineer by training, he has worked in very diverse sectors, in particular banking, foreign trade, industry and real estate. In the course of his business activities, he founded numerous companies of which he was the sole or principal shareholder. 13. In his submission, he is opposed to all uses of terrorism and has never had any involvement with al-Qaeda. On the contrary, he has consistently denounced not only the means used by that organisation, but also its ideology. 14. The applicant has further indicated that he has only one kidney that is still functioning properly (the other having deteriorated in recent years). He also suffers from bleeding in his left eye, as shown by a medical certificate of 20 December 2001, and arthritis in the neck. In addition, according to a medical certificate issued by a doctor in Zürich on 5 May 2006, he sustained a fracture in his right hand which was due to be operated on in 2004. The applicant has alleged that, because of the restrictions imposed on him which gave rise to the present application, he was unable to undergo this operation and has continued to suffer from the consequences of the fracture. 15. On 15 October 1999, in response to the 7 August 1998 bombings by Osama bin Laden and members of his network against the US embassies in Nairobi (Kenya) and Dar es Salaam (Tanzania) the Security Council of the United Nations (adopted, under Chapter VII of the United Nations Charter, Resolution 1267 (1999), providing for sanctions against the Taliban (see paragraph 70 below) and created a committee consisting of all the members of the Security Council to monitor the enforcement of that Resolution (“the Sanctions Committee”). 16. On 2 October 2000, to implement that Resolution, the Swiss Federal Council (the federal executive) adopted an Ordinance “instituting measures against the Taliban” (“the Taliban Ordinance” – see paragraph 66 below), which subsequently underwent a number of amendments, including to its title. 17. By Resolution 1333 (2000) of 19 December 2000 (see paragraph 71 below), the Security Council extended the sanctions regime. It was now also directed against Osama bin Laden and the al-Qaeda organisation, as well as the Taliban’s senior officials and advisers. In both Resolutions 1267 (1999) and 1333 (2000), the Security Council requested the Sanctions Committee to maintain a list, based on information provided by States and regional organisations, of individuals and entities associated with Osama bin Laden and al-Qaeda. 18. On 11 April 2001 the Swiss government amended the Taliban Ordinance in order to implement Resolution 1333 (2000). It added a new Article 4a, paragraph 1 of which prohibited entry into and transit through Switzerland for the individuals and entities concerned by the Resolution (but without naming them). 19. On 24 October 2001 the Federal Prosecutor opened an investigation in respect of the applicant. 20. On 7 November 2001 the President of the United States of America blocked the assets of Al Taqwa Bank, of which the applicant was the Chairman and principal shareholder. 21. On 9 November 2001 the applicant and a number of organisations associated with him were added to the Sanctions Committee’s list. On 30 November 2001 (or 9 November according to the applicant’s observations), their names were added to the list in an annex to the Taliban Ordinance. 22. On 16 January 2002 the Security Council adopted Resolution 1390 (2002), introducing an entry-and-transit ban in respect of “individuals, groups, undertakings and entities associated with them, as referred to in the list created pursuant to Resolutions 1267 (1999) and 1333 (2000)” (see paragraphs 70-71 and 74 below). On 1 May 2002 Article 4a of the Taliban Ordinance was amended accordingly: the entry-and-transit ban applied henceforth to all individuals named in Annex 2 to the Ordinance, including the applicant. 23. On 10 September 2002 Switzerland became a member of the United Nations. 24. When he visited London in November 2002, the applicant was arrested and removed to Italy, his money also being seized. 25. On 10 October 2003, following criticism by the Monitoring Group for the application of the sanctions (see paragraph 72 below), the Canton of Ticino revoked the applicant’s special border-crossing permit. The Monitoring Group had observed, in the course of its inquiry into the applicant’s activities, that he was able to move relatively freely between Switzerland and Italy. In the Government’s submission, it was only from this time onwards that the applicant was actually affected by the entry-and-transit ban. 26. On 27 November 2003 the Swiss Federal Office of Immigration, Integration and Emigration (IMES) informed the applicant that he was no longer authorised to cross the border. 27. On 23 March 2004 the applicant lodged a request with the IMES for leave to enter or transit through Switzerland for the purposes of medical treatment in that country and legal proceedings in both Switzerland and Italy. The IMES dismissed that request on 26 March 2004 as being ill-founded. Moreover, it indicated to the applicant that the grounds put forward in support of his request, namely, the need to consult his lawyers and receive treatment and, secondly, the specific situation related to his residence in Campione d’Italia, were not such as to permit the authorities to grant him an exemption from the measure taken against him. 28. By a decision of 27 April 2005, the Federal Criminal Court ordered the Federal Prosecutor either to discontinue the proceedings or to send the case to the competent federal investigating judge by 31 May 2005. By an order of that date the Federal Prosecutor, finding that the accusations against the applicant were unsubstantiated, closed the investigation in respect of the applicant. 29. On 22 September 2005 the applicant requested the Federal Council to delete his name and those of the organisations associated with him from the annex to the Taliban Ordinance. He argued, in support of his claim, that the police investigation concerning him had been discontinued by a decision of the Federal Prosecutor and that it was therefore no longer justified to subject him to sanctions. 30. By a decision of 18 January 2006, the State Secretariat for Economic Affairs (SECO) rejected his request on the ground that Switzerland could not delete names from the annex to the Taliban Ordinance while they still appeared on the United Nations Sanctions Committee’s list. 31. On 13 February 2006 the applicant lodged an administrative appeal with the Federal Department of Economic Affairs (“the Department”). 32. By a decision of 15 June 2006, the Department dismissed that appeal. It confirmed that the deletion of a name from the annex to the Ordinance could be envisaged only once that name had been deleted from the Sanctions Committee’s list, and explained that, for this purpose, it was necessary for the State of citizenship or residence of the person concerned to apply for delisting to the United Nations institutions. As Switzerland was neither the applicant’s State of citizenship nor his State of residence, the Department found that the Swiss authorities were not competent to initiate such a procedure. 33. On 6 July 2006 the applicant appealed to the Federal Council against the Department’s decision. He requested that his name and those of a certain number of organisations associated with him be deleted from the list in Annex 2 to the Taliban Ordinance. 34. On 20 September 2006 the Federal Office for Migration (FOM), which had been created in 2005, incorporating the IMES, granted the applicant an exemption for one day, 25 September 2006, so that he could go to Milan for legal proceedings. The applicant did not make use of that authorisation. 35. On 6 April 2007 the applicant sent to the “focal point” of the Sanctions Committee – a body set up by Resolution 1730 (2006) to receive requests for delisting from individuals or entities on the Sanctions Committee’s lists (see paragraph 76 below) – a request for the deletion of his name from the relevant list. 36. By a decision of 18 April 2007 the Federal Council, ruling on the appeal of 6 July 2006, referred the case to the Federal Court, finding that the applicant had been subjected to direct restrictions on his right to enjoy his possessions; also that Article 6 of the European Convention on Human Rights consequently applied to his request for deletion from the annex to the Taliban Ordinance, and that, accordingly, the case had to be examined by an independent and impartial tribunal. 37. In its observations, the Department submitted that the appeal should be dismissed, pointing out that Security Council Resolution 1730 (2006) of 19 December 2006 allowed persons and organisations whose names appeared on the Sanctions Committee’s list to apply for delisting on an individual basis rather than through their State of citizenship or residence. 38. The applicant maintained his submissions. Moreover, he alleged that on account of the FOM’s evident reluctance to grant exemptions under Article 4a § 2 of the Taliban Ordinance, he could not leave his home in Campione d’Italia despite the lack of adequate medical facilities there, or even go to Italy for administrative or judicial reasons, and that he had therefore effectively spent the past years under house arrest. The addition of his name to the Sanctions Committee’s list was also tantamount to accusing him publicly of being associated with Osama bin Laden, al-Qaeda and the Taliban, when that was not the case. Furthermore, he argued that the listing, without any justification or any possibility for him to be heard beforehand, breached the principles of prohibition of discrimination, individual freedom, enjoyment of possessions and economic freedom, together with the right to be heard and the right to a fair trial. Lastly, taking the view that the Security Council’s sanctions were contrary to the United Nations Charter and to the peremptory norms of international law ( jus cogens ), he argued that Switzerland was not obliged to implement them. 39. By a decision of 11 May 2007, in which it indicated the remedy available, the FOM dismissed a new exemption request by the applicant. By a decision of 12 July 2007, once again indicating the available remedies, it refused to examine a letter from the applicant that it regarded as a request for review. In a letter of 20 July 2007, the applicant explained that there had been a misunderstanding and that his previous letter had in fact been a new request for exemption. On 2 August 2007 the FOM again rejected his request, reminding him that he could challenge the decision by lodging an appeal with the Federal Administrative Court. The applicant did not appeal against the decision. 40. On 29 October 2007 the focal point for delisting requests denied the applicant’s request of 6 April 2007 to have his name removed from the Sanctions Committee’s list (see paragraph 35 above). On 2 November 2007 the focal point also rejected a request for information concerning the country that had designated him for listing and the reasons for that designation, invoking the confidentiality of the process. Lastly, in letters of 19 and 28 November 2007 the focal point reaffirmed the confidentiality of the process, but nevertheless informed the applicant that a State whose identity could not be disclosed had opposed his delisting. B. Federal Court judgment of 14 November 2007 41. By a judgment of 14 November 2007 the Federal Court, to which the Federal Council had referred the applicant’s appeal (see paragraph 36 above), declared that appeal admissible but dismissed it on the merits. 42. It firstly pointed out that, under Article 25 of the United Nations Charter, the United Nations member States had undertaken to accept and carry out the decisions of the Security Council in accordance with the Charter. It then observed that under Article 103 of the Charter the obligations arising from that instrument did not only prevail over the domestic law of the member States but also over obligations under other international agreements, regardless of their nature, whether bilateral or multilateral. It further stated that this primacy did not relate only to the Charter but extended to all obligations which arose from a binding resolution of the Security Council. 43. The Federal Court observed, however, that the Security Council was itself bound by the Charter and was required to act in accordance with its purposes and principles (Article 24 § 2 of the Charter), which included respecting human rights and fundamental freedoms (Article 1 § 3 of the Charter). At the same time, it took the view that the member States were not permitted to avoid an obligation on the ground that a decision (or resolution) by the Security Council was substantively inconsistent with the Charter, in particular decisions (resolutions) based on Chapter VII thereof (action with respect to threats to the peace, breaches of the peace and acts of aggression). 44. The Federal Court then observed that under Article 190 of the Federal Constitution (see paragraph 65 below), it was bound by federal laws and international law. It took the view that the applicable international law, in addition to international treaties ratified by Switzerland, also included customary international law, general principles of law and the decisions of international organisations which were binding on Switzerland, including the Security Council’s decisions concerning the sanctions regime. 45. However, it observed that Article 190 of the Constitution contained no rules on how to settle possible conflicts between different norms of international law which were legally binding on Switzerland, and that in the present case there was such a conflict between the Security Council’s decisions on the one hand and the guarantees of the European Convention on Human Rights and the International Covenant on Civil and Political Rights on the other. It took the view that unless the conflict could be resolved by the rules on the interpretation of treaties, it would be necessary, in order to settle the issue, to look to the hierarchy of international legal norms, according to which obligations under the United Nations Charter prevailed over obligations under any other international agreement (Article 103 of the Charter, taken together with Article 30 of the Vienna Convention on the Law of Treaties; see paragraphs 69 and 80 below). The Federal Court was of the opinion that the uniform application of United Nations sanctions would be endangered if the courts of States Parties to the European Convention or the International Covenant on Civil and Political Rights were able to disregard those sanctions in order to protect the fundamental rights of certain individuals or organisations. 46. The court nevertheless accepted that the obligation to implement the Security Council’s decisions was limited by norms of jus cogens. Accordingly, it considered itself bound to ascertain whether the sanctions regime set up by the Security Council was capable of breaching the peremptory norms of international law, as the applicant had claimed. 47. The Federal Court then cited, as examples of jus cogens norms, the right to life, protection from torture and inhuman or degrading treatment, the prohibition of slavery, the prohibition of collective punishment, the principle of individual criminal responsibility and the non-refoulement principle. It took the view, however, that the enjoyment of possessions, economic freedom, the guarantees of a fair trial or the right to an effective remedy did not fall within jus cogens. 48. As regards the consequences for the applicant of the measures taken against him, in particular the ban on entry into and transit through Switzerland, the Federal Court found as follows: “7.4 ... These sanctions include far-reaching commercial restrictions for those affected; the funds necessary for their survival are not, however, blocked (see Resolution 1452 (2002), paragraph 1(a)), as a result of which there is neither any threat to their life or health nor any inhuman or degrading treatment. The travel ban restricts the freedom of movement of those concerned but in principle represents no deprivation of liberty: they are free to move around within their country of residence (see, however, point 10.2 below regarding the appellant’s particular situation); journeys to their home country are also specifically permitted (see Resolution 1735 (2006), paragraph 1(b)). ...” 49. The Federal Court further indicated that, generally speaking, sanctions were decided by the Security Council without individuals or organisations being afforded the opportunity to comment either in advance or afterwards or to appeal against them before international or national courts. It mentioned in this connection that, in particular under the terms of Resolution 1730 (2006), the delisting procedure allowing individuals to have direct access to the Sanctions Committee already represented substantial progress, even though the system still had considerable shortcomings from the point of view of human rights. 50. The Federal Court then examined the question of the extent to which Switzerland was bound by the relevant resolutions, in other words whether it had any latitude ( Ermessensspielraum ) in implementing them: “8.1 The Security Council adopted Resolution 1267 (1999) and the subsequent Resolutions regarding sanctions affecting al-Qaeda and the Taliban on the basis of Chapter VII of the United Nations Charter, with the express obligation on all member States to adopt an integral and strict approach to implementing the sanctions envisaged therein, ignoring any existing rights and obligations under international agreements or contracts (see paragraph 7 of Resolution 1267 (1999)). The sanctions (freezing of assets, entry-and-transit ban, arms embargo) are described in detail and afford member States no margin of appreciation in their implementation. The names of those affected by the sanctions are also indicated to the member States: this is determined by the list drawn up and maintained by the Sanctions Committee (see paragraph 8(c) of Resolution 1333 (2000)). As regards the possibility of obtaining deletion from the list, the Sanctions Committee has introduced a specific procedure (see paragraphs 13 et seq. of Resolution 1735 (2006) and the directives of the Sanctions Committee dated 12 February 2007). The member States are thus debarred from deciding of their own motion whether or not sanctions should continue to be imposed on a person or organisation appearing on the Sanctions Committee’s list. Switzerland would therefore be in breach of its obligations under the Charter were it to delete the names of the appellant and his organisations from the annex to the Taliban Ordinance. ... 8.3 In view of the foregoing, Switzerland is not permitted, of its own motion, to delete the appellant’s name from Annex 2 to the Taliban Ordinance. It is to be admitted that in this situation no effective remedy is available to the appellant. The Federal Court may certainly examine whether and to what extent Switzerland is bound by the Resolutions of the Security Council, but it is not permitted to remove the sanctions against the appellant on the ground that they breach his fundamental rights. The Sanctions Committee alone is responsible for the delisting of persons or entities. In spite of the improvements mentioned above, the delisting procedure fails to meet both the requirement of access to a court under Article 29a of the Federal Constitution, Article 6 § 1 of the [Convention] and Article 14 § 1 of the United Nations Covenant on Civil and Political Rights, and that of an effective remedy within the meaning of Article 13 of the [Convention] and Article 2 § 3 of the United Nations Covenant ...” 51. The Federal Court further examined whether Switzerland, even if it were not authorised to delete the applicant’s name from the list on its own initiative, was nevertheless at least obliged to assist him in connection with the delisting procedure. Its reasoning was as follows: “9.1 The lower courts examined whether Switzerland was obliged to initiate the delisting procedure on behalf of the appellant. In the meantime, this issue has become irrelevant as, since the amendment of the delisting procedure, the appellant has been able to make an application himself and has indeed availed himself of this opportunity. 9.2 For his application to be successful he nevertheless relies on the support of Switzerland, since this is the only country to have conducted a comprehensive preliminary investigation, with numerous letters of request, house searches and questioning of witnesses. United Nations member States are obliged to prosecute persons suspected of financing or supporting terrorism (see paragraph 2(e) of Security Council Resolution 1373 (2001)) ... On the other hand, should the criminal proceedings end in an acquittal or be discontinued, this should lead to the removal of the preventive sanctions. Admittedly, the country which has conducted the criminal proceedings or preliminary investigation cannot itself proceed with the deletion, but it can at least transmit the results of its investigations to the Sanctions Committee and request or support the person’s delisting.” 52. Lastly, the Federal Court examined whether the travel ban enforced under Article 4a of the Taliban Ordinance extended beyond the sanctions introduced by the Security Council Resolutions and whether the Swiss authorities thus had any latitude in that connection. The court found as follows: “10.1 Article 4a § 1 of the Taliban Ordinance prohibits the individuals listed in Annex 2 from entering or transiting through Switzerland. Article 4a § 2 provides that, in agreement with the United Nations Security Council decisions or for the protection of Swiss interests, the Federal Office for Migration is entitled to grant exemptions. According to the Security Council Resolutions, the travel ban does not apply if the entry or transit is required for the fulfilment of a judicial process. In addition, exemptions can be granted in individual cases with the agreement of the Sanctions Committee (see paragraph 1(b) of Resolution 1735 (2006)). This includes in particular travel on medical, humanitarian or religious grounds ... 10.2 Article 4a § 2 of the Taliban Ordinance is formulated as an ‘enabling’ provision and gives the impression that the Federal Office for Migration has a certain margin of appreciation. Constitutionally however, the provision is to be interpreted as meaning that an exemption should be granted in all cases where the United Nations sanctions regime so permits. A more far-reaching restriction on the appellant’s freedom of movement could not be regarded as based on the Security Council Resolutions, would not be in the public interest and would be disproportionate in the light of the appellant’s particular situation. The appellant lives in Campione, an Italian enclave in Ticino, with an area of 1.6 sq. km. As a result of the ban on entry into and transit through Switzerland, he is unable to leave Campione. Practically speaking, as the appellant correctly argued, this is tantamount to house arrest and thus represents a serious restriction on his personal liberty. In these circumstances the Swiss authorities are obliged to exhaust all the relaxations of the sanctions regime available under the United Nations Security Council Resolutions. The Federal Office for Migration thus has no margin of appreciation. Rather, it must examine whether the conditions for the granting of an exemption are met. Should the request not fall within one of the general exemptions envisaged by the Security Council, it must be submitted to the Sanctions Committee for approval. 10.3 The question whether the Federal Office for Migration has disregarded the constitutional requirements in dealing with the appellant’s applications for leave to travel abroad does not need to be examined here: the relevant orders of the Federal Office have not been challenged by the appellant and are not a matter of dispute in the present proceedings. The same applies to the question whether the appellant should have moved his place of residence from the Italian enclave of Campione to Italy. To date the appellant has made no such request.” C. Developments subsequent to the Federal Court’s judgment 53. Following the Federal Court’s judgment, the applicant wrote to the FOM to request it to re-examine the possibility of applying general exemptions to his particular situation. On 28 January 2008 he lodged a new request seeking the suspension of the entry-and-transit ban for three months. By a letter of 21 February 2008, the FOM denied that request, stating that it was unable to grant a suspension for such a long period without referring the matter to the Sanctions Committee, but that it could grant one-off safe conducts. The applicant did not challenge that decision. 54. On 22 February 2008, at a meeting between the Swiss authorities and the applicant’s representative on the subject of the support that Switzerland could provide to the applicant in his efforts to obtain his delisting, a representative of the Federal Department of Foreign Affairs observed that the situation was rather singular as the applicant, on the one hand, was asking what support the Swiss authorities could give him in the United Nations delisting procedure and, on the other, had brought a case against Switzerland before the Court. During the meeting the applicant’s representative explained that he had received verbal confirmation from the FOM to the effect that his client would be granted one-off authorisations to go to Italy, in order to consult his lawyer in Milan. The representative of the Federal Department of Foreign Affairs also indicated that the applicant could ask the Sanctions Committee for a more extensive exemption on account of his particular situation. However, she also repeated that Switzerland could not itself apply to the Sanctions Committee for the applicant’s delisting. She added that her government would nevertheless be prepared to support him, in particular by providing him with an attestation confirming that the criminal proceedings against him had been discontinued. The applicant’s lawyer replied that he had already received a letter attesting to the discontinuance in favour of his client and that this letter was sufficient. As to the applicant’s requests to the Italian authorities with a view to obtaining their support in a delisting procedure, the Federal Department’s representative suggested that the lawyer contact the Italian Permanent Mission to the United Nations, adding that Italy had, at that time, a seat on the Security Council. 55. The Government informed the Court that in April 2008 an Egyptian military tribunal had sentenced the applicant in absentia to ten years’ imprisonment for providing financial support to the Muslim Brotherhood organisation (see the article on this subject in the daily newspaper Corriere del Ticino of 16 April 2008). The applicant did not dispute the fact that he had been convicted but argued that he had never been informed of the proceedings against him and that he had therefore never had the possibility of defending himself in person or through the intermediary of a lawyer. For those reasons, and also taking into account the fact that the trial was held before a military tribunal even though he was a civilian, he claimed that the proceedings in question were clearly in breach of Article 6. 56. On 5 July 2008 the Italian government submitted to the Sanctions Committee a request for the applicant’s delisting on the ground that the case against him in Italy had been dismissed. The Committee denied that request by a decision of 15 July 2008. In the applicant’s submission, the Committee had not allowed him to submit his observations to it beforehand. 57. On 11 September 2008 the FOM granted the applicant the right to enter Switzerland and to remain in the country for two days, but the applicant did not make use of this authorisation. 58. By a letter of 23 December 2008, the FOM informed the applicant that the entry of Switzerland into the Schengen Area, on 12 December 2008, did not affect his situation. 59. In their observations before the Chamber, the Swiss Government stated that, to their knowledge, the applicant’s listing had been initiated by a request from the United States of America, and that the same State had submitted to the Sanctions Committee, on 7 July 2009, a request for the delisting of a number of individuals, including the applicant. 60. On 24 August 2009, in accordance with the procedure laid down by Security Council Resolution 1730 (2006), the applicant submitted a request to the focal point for delisting requests for the deletion of his name from the Sanctions Committee’s list. 61. On 2 September 2009 Switzerland sent to the Sanctions Committee a copy of a letter of 13 August 2009 from the Federal Prosecutor’s Office to the applicant’s lawyer, in which that Office confirmed that the judicial police investigation in respect of his client had not produced any indications or evidence to show that he had ties with persons or organisations associated with Osama bin Laden, al-Qaeda or the Taliban. 62. On 23 September 2009 the applicant’s name was deleted from the list annexed to the Security Council Resolutions providing for the sanctions in question. According to the applicant, the procedure provided for under Resolution 1730 (2006) was not followed and he received no explanation in this connection. On 29 September 2009 the annex to the Taliban Ordinance was amended accordingly and the amendment took effect on 2 October 2009. 63. By a motion passed on 1 March 2010, the Foreign Policy Commission of the National Council (lower house of the Federal Parliament) requested the Federal Council to inform the United Nations Security Council that from the end of 2010 it would no longer, in certain cases, be applying the sanctions prescribed against individuals under the counterterrorism resolutions. It moreover called upon the Government to reassert its steadfast commitment to cooperate in the fight against terrorism in accordance with the legal order of the States. The motion had been introduced on 12 June 2009 by Dick Marty, a member of the Council of States (upper house of the Federal Parliament), and it referred to the applicant’s case by way of example. D. Efforts made to improve the sanctions regime 64. The Government asserted that even though Switzerland was not a member of the Security Council it had, with other States, actively worked since becoming a member of the United Nations on 10 September 2002 to improve the fairness of the listing and delisting procedure and the legal situation of the persons concerned. Thus, in the summer of 2005, it had launched with Sweden and Germany a new initiative to ensure that fundamental rights would be given more weight in the sanctions procedure. Pursuing its initiative, Switzerland had submitted to the Security Council in 2008, together with Denmark, Germany, Liechtenstein, the Netherlands and Sweden, concrete proposals for the setting-up of an advisory panel of independent experts authorised to submit delisting proposals to the Sanctions Committee. Moreover, in the autumn of 2009 Switzerland had worked intensively with its partners to ensure that the Resolution on the renewal of the sanctions regime against al-Qaeda and the Taliban, scheduled for adoption in December, met that need. In the meantime Switzerland had supported the publication in October 2009 of a report proposing, as an option for an advisory review mechanism, the creation of an ombudsperson. On 17 December 2009 the Security Council adopted Resolution 1904 (2009), setting up the office of ombudsperson to receive complaints from individuals affected by the United Nations Security Council counterterrorism sanctions (see paragraph 78 below). Lastly, Switzerland had called on many occasions, before the United Nations Security Council and General Assembly, for an improvement in the procedural rights of the persons concerned by the sanctions. | The Swiss Federal Taliban Ordinance was enacted pursuant to several UN Security Council Resolutions. It had the effect of preventing the applicant, an Egyptian national, from entering or transiting through Switzerland due to the fact that his name had been added to the list annexed to the UN Security Council’s Sanctions Committee of persons suspected of being associated with the Taliban and al-Qaeda. The applicant had been living in an Italian enclave of about 1.6 square kilometres surrounded by the Swiss Canton of Ticino and separated from the rest of Italy by a lake. He claimed that the restriction made it difficult for him to leave the enclave and therefore to see his friends and family, and that it caused him suffering due to his inability to receive appropriate medical treatment for his health problems. He further found it difficult to remove his name from the Ordinance, even after the Swiss investigators had found the accusations against him to be unsubstantiated. |
912 | Tribunal established by law | 2. The applicant was born in 1970 and her address on the application form is given as being in the United States of America. The applicant was represented by Mr A. Saccucci and Ms G. Borgna, lawyers practising in Rome. 3. The Government were represented by their then Agent, Mr A. Metani, and, subsequently, by Ms E. Muçaj of the State Advocate ’ s Office. The Background TO THE CASE 4. In 2014 an ad hoc parliamentary committee, which was to be responsible for the reform of the justice sector, was set up. It subsequently approved a report on the assessment of the justice system in Albania (“the Assessment Report”). The Assessment Report referred to a number of public opinion polls and court user surveys carried out between 2009 and 2015, according to which there was widespread public perception that the justice system was plagued by corruption, undue external influence, a lack of transparent practices, excessively lengthy proceedings and non-enforcement of final court decisions. According to public opinion, some judges and prosecutors had to pay kickbacks to be appointed or transferred to vacant positions in the capital city or other major cities. Unofficial data indicated that the cycle of paying kickbacks – mainly with the involvement of a “middleman”, such as a family member, friend or lawyer – was pervasive among the main stakeholders, such as judicial police officers, prosecutors and judges. Consequently, this had hampered the delivery of justice: corrupt judicial police officers took bribes in order to destroy evidence related to the crime scene, corrupt prosecutors accepted payments to avoid instituting criminal proceedings or bringing charges, and corrupt judges delayed holding hearings or conditioned the delivery of a decision on receipt of a kickback. The low level of professionalism demonstrated by the main stakeholders of the justice system had been evident, as had the failings of the legal education system to shape citizens cognisant of their legal rights and obligations and of the importance of familiarity with and observance of the law. The Assessment Report also referred to a number of monitoring reports released by international bodies, which had pointed to varying problems affecting the justice system in Albania. 5. The Assessment Report served as the cornerstone for the production and adoption of a strategy on justice system reform (“the Reform Strategy”). Some of the measures proposed in the Reform Strategy aimed at, amongst other things, ( i ) improving the system for the disclosure and verification of assets of judges and prosecutors and conflicts of interest in order to identify cases of appropriation of unlawful assets, (ii) introducing statutory provisions making compulsory a detailed verification of assets of judges and prosecutors and conflicts of interest prior to their taking up office, (iii) increasing transparency in the disclosure of assets of judges and prosecutors by enabling the inclusion of other stakeholders (such as the public and civil society) in providing information, facts and other data that would facilitate their verification and (iv) requiring by law the commencement of disciplinary proceedings against judges and prosecutors for failure to disclose, disclosure out of time or incomplete disclosure of assets and conflicts of interest during the exercise of their duties. 6. As a result of the proposed Reform Strategy, in 2016 the Constitution was amended and a number of essential statutes were enacted, one of which was the Re-evaluation of Judges and Prosecutors Act, otherwise referred to as the Vetting Act. For the purposes of this judgment, the terms “Re-evaluation of Judges and Prosecutors Act” and “Vetting Act” are used interchangeably. Likewise, the terms “vetting process/proceedings” and “re-evaluation process/proceedings” are used interchangeably. 7. The vetting process to which all serving judges and prosecutors would be subject would be carried out by an Independent Qualification Commission at first instance and a Special Appeal Chamber on appeal, which would re-evaluate three criteria, namely: an evaluation of assets, an integrity background check to discover links to organised crime and an evaluation of professional competence. All persons to be vetted were required by law to file three separate declarations, as appended to the Vetting Act, in respect of each re-evaluation criterion. The circumstances of the case 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. The applicant ’ s judicial career started in March 1995 when she was appointed to the post of judge at the Tirana District Court. In 2006, while she continued to work as a judge, she was elected a member of the High Council of Justice, the body responsible for the appointment, transfer and promotion of district and appellate court judges and the termination of their service, where she served for four years. On 25 May 2010 she was appointed, for a non-renewable nine-year term, as a judge of the Constitutional Court. 10. In accordance with the Assets Disclosure Act, the applicant filed annual declarations of assets between 2003 and 2016, as did her partner, who was a civil servant. Proceedings before the Independent Qualification Commission 11. Pursuant to the Re-evaluation of Judges and Prosecutors Act, the applicant filed a declaration of assets ( deklarata e pasurisë ). She and her partner disclosed that they co-owned three properties: ( i ) a flat measuring 101 sq. m which had been acquired by means of a contract for an off-plan purchase (“an off-plan contract”) entered into on 8 March 2005 ( blerë më 8 mars 2005 [me] kontratë sipërmarrje ) and had been registered with the local immovable property registration office in December 2011 following the conclusion of a sale contract; (ii) a flat measuring 59 sq. m which had been purchased through an off-plan contract on 5 October 2010 ( kontratë sipërmarrje datë 5.10.2010 ) and (iii) a plot of land measuring 221.9 sq. m. They both also gave a detailed description of the sources of their income and savings. The applicant further disclosed that she held bank accounts in the United States, which had been opened in 2015 and 2016. She also filed an integrity background declaration ( deklarata për kontrollin e figurës ) and a professional self-appraisal form ( formulari i vetëvlerësimit professional ) (see also paragraphs 133 and 134 below). Administrative investigation 12. On 14 November 2017, owing to the fact that the applicant had been included on a priority list of persons to be vetted on account of her being a Constitutional Court judge, the Independent Qualification Commission (“IQC”) decided to launch an in-depth administrative investigation ( hetim administrative të thelluar ) into the three declarations that she had filed. 13. On 30 November 2017 lots were drawn for the composition of the three-member panel of the IQC and the applicant was informed accordingly. 14. Between 15 December 2017 and 5 March 2018 the IQC asked the applicant to reply to numerous detailed questions. She responded between 26 December 2017 and 6 March 2018. 15. On 19 March 2018 the IQC, in accordance with section 47 of the Vetting Act, informed the applicant of the conclusion of the administrative investigation and provided her with the relevant preliminary findings, including the documents which had served as the basis for those findings. In particular, as regards the flat measuring 101 sq. m, the findings stated ( i ) that there were inconsistencies in relation to the source of income that had been used to acquire the flat, when comparing the 2005 declaration of assets and the vetting declaration of assets, and in relation to the means by which it had been created, in particular the existence of an off-plan contract concluded in 2003, and (ii) that there was a lack of supporting documents relating to the source of funds which had been used to purchase the flat. As regards the applicant ’ s financial situation ( likuiditetet ), the findings stated that she had not had sufficient lawful income in 2007, 2009 and 2015 to justify the excessive amount of liquid assets. As regards a plot of land measuring 666 sq. m, which she had disclosed in the 2003 declaration of assets but had not included in the vetting declaration of assets, the findings stated that there were inconsistencies in relation to her share of that plot. Furthermore, she was asked to provide explanations in connection with a complaint made by a member of the public about her failure to recuse herself from the examination of a constitutional complaint. 16. Pursuant to section 52 of the Vetting Act and Article D § 5 of the Annex to the Constitution, the IQC shifted the burden of proof onto the applicant, who had twenty days to submit arguments in support of her defence. She was also reminded of her rights under Articles 35 to 40 and 45 to 47 of the Code of Administrative Procedure, including the right to seek access to the case file, submit additional evidence and call any witnesses. 17. On 21 March 2018 the applicant made a request for access to her file, seeking information concerning the methodology used to calculate expenses incurred on her trips abroad. The IQC responded favourably on 23, 27 and 30 March 2018. It further transpired that from 6 January to 5 December 2017 the auxiliary bodies which had been authorised by the Vetting Act to assist the vetting bodies in their mandate, namely the High Inspectorate for the Declaration and Audit of Assets and Conflicts of Interest (“HIDAACI”), the Classified Information Security Directorate (“CISD”) and the Inspectorate of the High Council of Justice (“IHCJ”), had given a favourable opinion in relation to all of the applicant ’ s declarations. 18. On 7 April 2018 the applicant submitted lengthy arguments and evidence in support of her defence. 19. On 16 April 2018, following the applicant ’ s submissions, the IQC asked the applicant to provide additional information so that certain factual circumstances could be determined. 20. On 17 April 2018 the IQC informed the applicant that a public hearing would be held in accordance with section 55 of the Vetting Act. She was also informed of her rights under Articles 35 to 40 of the Code of Administrative Procedure. The hearing took place on 23 April 2018. The applicant, who was represented by her own counsel, made further submissions in writing and oral pleadings. 21. On 25 April 2018 the IQC adjourned without taking a decision in the applicant ’ s case in order to have further time to examine the additional evidence which she had submitted by email on 18 April 2018 and made available at the hearing. The IQC ’ s decision 22. On 4 June 2018 the IQC, having regard to the reports submitted by the public auxiliary bodies, other written evidence it had obtained in the course of the administrative investigation, the submissions made in reply by the applicant and two complaints made by members of the public, delivered its reasoned decision in the applicant ’ s case. The operative provisions had been made public on 3 May 2018. (a) Findings regarding the evaluation of assets (i) As regards the flat measuring 101 sq. m 23. The IQC, having examined the evidence in the case file relating to the flat measuring 101 sq. m which belonged to the applicant and her partner, found that “there [was] a lack of legal supporting documents as required by law, false declaration and concealment of income in connection with the lawfulness of the source of income disclosed as having served as the basis for acquiring the flat ( në lidhje me ligjshmërinë e burimit të deklaruar të të ardhurave që kanë shërbyer për blerjen e këtij apartamenti, ka mungesë dokumentacioni justifikues ligjor, deklarim të rremë dhe fshehje të të ardhurave )”. 24. In drawing this conclusion, the IQC held that there was an inconsistency between the applicant ’ s vetting declaration of assets and her partner ’ s declaration of assets filed in 2003 and 2005 in relation to the source of income which had been used for the acquisition of the asset. The applicant ’ s vetting declaration of assets indicated that the source of income used for the acquisition of the flat had been her partner ’ s income from gainful employment in Italy and scholarship money he had received. However, her partner ’ s declaration of assets filed in 2005 stated for the first time that the flat had been purchased with the proceeds of sale of another flat measuring 93 sq. m, topped up by annual savings. His declaration of assets filed in 2003 stated that the flat measuring 93 sq. m had been bought with the proceeds obtained from the sale of another flat and savings from his employment in Italy. Consequently, according to the IQC, the flat measuring 101 sq. m had been bought with the proceeds secured from the earlier sale of a flat measuring 93 sq. m. 25. The IQC further referred to an off-plan contract ( kontratë sipërmarrje ) concluded before a notary public on 7 March 2005, according to which the applicant and her partner had agreed to transfer ownership of the flat measuring 93 sq. m to a third party who, in turn, had paid the sale price in full. The contract stated that both the applicant and her partner had received the sale price. It contained the following statement: “on 31 March 2003 the building company entered into an off-plan contract with [the applicant and her partner] in respect of a flat ... measuring 93 sq. m”. Relying on this contract, the IQC concluded that both the applicant and her partner had acquired the flat measuring 93 sq. m. Even though the applicant and her partner had not been living together at the material time, the IQC held that the applicant could not have been absolved from the obligation to disclose in the 2003 declaration of assets the off-plan contract to which she had been a party and on the basis of which she had acquired property rights and made a payment in respect of the flat. Whereas the transaction had been effected by means of an off-plan contract, the goal of such a transaction was the sale and purchase of real property. Therefore, the true source of funds for the acquisition of the flat measuring 101 sq. m had been the proceeds of sale of an earlier flat measuring 93 sq. m which both the applicant and her partner had bought in 2003 through an off-plan contract. The IQC held that she had been co-owner of the flat and that she had failed to disclose the flat measuring 101 sq. m in any of the annual declarations of assets between 2005 and 2011 (see paragraph 11 above). According to the IQC, “the [applicant ’ s] concealment of the notarial deeds [entered into between 2003 and 2005] demonstrate[d] the failure to disclose truthfully the source [of funds used] for the creation of the asset being re-evaluated ( fshehja e veprimeve noteriale nga ana e subjektit të rivlerësimit pasqyron mosdeklarimin me vërtetësi të burimit të krijimit të pasurisë -vetting )”. 26. As regards the applicant ’ s claim that she had contributed towards the purchase of the flat, the IQC, making an assessment of the evidence in the case file, held that the applicant had not possessed sufficient liquid assets: in 2003 her liquid assets had amounted to 783,964 Albanian leks (ALL 6,251 euros (EUR), at the current exchange rate) and in 2004 to ALL 25,000 (EUR 200). Furthermore, she had been burdened with loans obtained in 2003 and 2004. 27. The IQC further rejected the applicant ’ s claim that the flat had been purchased with her partner ’ s income while he had been studying, working and living in Italy from 1992 to 2001. Making an assessment of the evidence in the case file, the IQC, having regard to the fact that only income subject to tax could be considered lawful, held that her partner ’ s financial situation had been negative. Notwithstanding this, the IQC carried out another assessment on the basis of his disclosed income and reached the conclusion that his net income (ALL 206,399 – EUR 1,646) had been insufficient to purchase the flat. The IQC only took into account the earnings obtained from her partner ’ s employment as a waiter. In the absence of any supporting documents, the IQC disregarded any earnings which would have been calculated as commission under a contract he had concluded with an Italian company. In determining the living expenses, the IQC based its estimates on information published by the Italian Institute of Statistics for the period 2002 to 2004. 28. The IQC stated that the applicant had not submitted any supporting documents to justify her partner ’ s inability to provide documents dating from the 1990s in accordance with section 32(2) of the Vetting Act. She had not informed the IQC that, in view of the relationship her partner had had with the bank with which he had had an account in Italy, the Italian company which was still operating or the Italian National Institute of Social Security, supporting documents had gone missing, had been lost or could not be reproduced in any other way. Lastly, the IQC found that there were no documents in the case file to demonstrate that the scholarship money, which the Italian Ministry of Foreign Affairs had awarded her partner, had been transferred to his account. The IQC considered that the scholarship money, which had been awarded for a particular purpose, could not have given rise to considerable savings that could be used to buy a flat. It further held that the income which the applicant ’ s partner claimed to have earned by working on the black market was “not a convincing source for justifying this asset” ( nuk janë burime të bindshme për justifikimin e kësaj pasurie ). (ii) As regards a flat measuring 58.75 sq. m 29. The IQC found that the applicant had not possessed sufficient lawful income in 2010 ( të ardhura të ligjshme të mjaftueshme ) to buy a flat measuring 58.75 sq. m through an off-plan contract ( fituar me anë të kontratës së sipërmarrjes ). (iii) As regards a plot of land measuring 221.9 sq. m 30. The IQC held that the applicant had benefitted from a bigger plot of land (that is, 221.9 sq. m) than her entitlement by law (that is, 128.89 sq. m) as a result of the transfer of ownership of a plot of land in 2013. (iv) As regards the financial situation of the applicant and her partner 31. The IQC, after determining the sources of assets and liabilities of the applicant and her partner, found that the applicant had lacked lawful financial sources of income ( ka mungesë të burimit të ligjshëm financiar ) to justify her liquid assets [1] in 2007, 2009 and 2015 of a total amount of ALL 1,972,969 (EUR 15,750). In determining the financial situation, the IQC had regard to the carryover cash balance of the applicant and her partner at the start of each year and their documented income. Liabilities comprised living expenses which had been determined by HIDAACI, travel expenses which had been calculated with reference to EUR 180 for a low-cost airline ticket, EUR 300 for a full service carrier ticket and EUR 50 for daily expenses, mortgage repayments which had been calculated on the basis of documents furnished by commercial banks and other encumbrances. 32. In its determination of liquid assets, the IQC, relying on the supporting documents which the applicant had submitted, accepted the justification of certain income and expenses, for example income earned by her partner, certain travel expenses borne by her employer and educational expenses for her child. It also rejected certain other claims made by the applicant because of a lack of supporting documents. 33. The IQC further considered that the fact that her partner had held EUR 15,000 in cash at home had been contrary to a provision of the Asset Disclosure Act, which had required him to deposit the cash in a bank account before filing the annual declaration of assets (see paragraph 202 below). (v) As regards a mortgage of 40,000 United States dollars (USD) 34. The IQC held that the applicant had concealed the true nature of a mortgage of USD 40,000 which she had obtained in 2003 and that the taking of the mortgage had been fictitious. (vi) As regards a plot of agricultural land measuring 666 sq. m 35. The IQC found that, on the basis of the documents in the case file, the applicant had made an inaccurate disclosure ( deklarim të pasaktë ) in 2003 as regards her share of a plot measuring 666 sq. m, which, according to the sale contract and property certificate, had been registered solely in the name of her mother. (vii) As regards a flat measuring 89.16 sq. m 36. The IQC held that the applicant had made a false disclosure ( deklarim të rremë ) as regards the proceeds she had obtained, as co-owner, from the sale of a flat in 2003. (b) Findings regarding the evaluation of other criteria 37. The IQC endorsed the positive findings of the IHCJ in relation to the applicant ’ s ethics and professional competence. 38. The IQC further found that, following a complaint made by a member of the public under section 53 of the Vetting Act (see paragraph 148 below), the applicant had failed to disclose a conflict of interest and recuse herself from the examination of a constitutional complaint relating to the outcome of a set of civil proceedings before the lower courts in accordance with section 36(1)(c) of the Constitutional Court Act and Article 72 § 6 of the Code of Civil Procedure (see paragraphs 199 and 197 below). According to the IQC, the conflict of interest lay in the fact that the applicant ’ s father had been the rapporteur of an appellate court bench which had examined the issue of statutory limitations in a separate set of criminal proceedings against third parties, a complaint which had been brought by the same person who had lodged the constitutional complaint with the Constitutional Court. In that set of criminal proceedings, the appellate court had decided that the prosecution was time-barred. Those third parties had also been an interested party in the constitutional proceedings. 39. As regards the applicant ’ s conduct, the IQC considered that she had cooperated during the re-evaluation proceedings and had provided explanations, as requested. However, it considered that the documents she had provided were of a declaratory nature. (c) Overall conclusion 40. The IQC, having regard to the findings concerning the evaluation of the applicant ’ s assets and her failure to disclose a conflict of interest, decided by a majority to order her dismissal from office under section 61(3) and (5) of the Vetting Act (see paragraph 151 below). (d) Dissenting opinion 41. A member of the IQC (G.T.) appended a dissenting opinion which stated that the inconsistencies in the declarations of assets as regards the flat measuring 101 sq. m (see paragraph 24 above) could not constitute sufficient evidence to warrant the applicant ’ s dismissal from office; nor could inaccuracies in the declaration of assets be regarded as insufficient disclosure of assets. In the dissenter ’ s view, it had been proven that the flat measuring 101 sq. m had been purchased with the proceeds obtained from the sale of another flat, which, in turn, had been acquired in 2003 with the income from the applicant ’ s partner ’ s employment in Italy and his scholarship money. Consequently, the income had originated from her partner ’ s funds and could not have given rise to inconsistencies in the declarations filed in different years. 42. As her partner had earned the income over twenty years earlier, it had been objectively impossible for the applicant to obtain and submit documents to verify the source thereof. The financial assessment made in respect of her partner had disregarded the income he had received in 1996, 1998 and 1999 while working on the black market in Italy. It was widely acknowledged that Albanian students in Italy or elsewhere abroad had to work on the black market to earn an income in addition to any scholarship awarded to them. Indeed, the Vetting Act favoured lawful income subject to tax. Still, the spirit of the law, read together with the Annex to the Constitution, was in favour of a person whose total assets were up to twice the amount of lawful assets ( favorizon subjektet duke legjitimuar deri ne dyfishin e pasurise se ligjshme ). The applicant ’ s total assets had not exceeded twice the amount of lawful assets. The dissenter did not share the majority ’ s view as regards the money from the scholarship; nor did the dissenter endorse the majority ’ s findings concerning the notarial deed entered into in 2003, in so far as the IQC had not obtained any evidence to show that the applicant had contributed to the acquisition of or benefitted from the sale of that flat. 43. As regards the applicant ’ s liquid assets in 2007, 2009 and 2010, the dissenter considered that the inaccuracies in completing the declaration of assets could not be regarded as false disclosure or a lack of lawful income. Furthermore, in the dissenter ’ s view, the mortgage of USD 40,000 had been directly paid into the building company ’ s bank account. This fact sufficed to demonstrate that the mortgage had been obtained for the purchase of the flat, and the applicant could not be blamed for material errors in the notarial deed. On the whole, the dissenter concluded, referring to the principle of proportionality, that the applicant had amassed credible assets. 44. Lastly, the applicant had not been faced with a conflict of interest in connection with the complaint made by the member of the public in relation to her father ’ s participation in a criminal case as a member of an appellate court bench. Proceedings before the Appeal ChamberThe applicant ’ s appeal The applicant ’ s appeal The applicant ’ s appeal 45. On 19 June 2018 the applicant lodged a 42-page appeal against the IQC ’ s decision with the Special Appeal Chamber (“the Appeal Chamber”), making two strands of arguments: the first related to allegations concerning procedural or substantial breaches of the law, and the second challenged the IQC ’ s findings. The applicant reiterated the same arguments in her further written submissions of 21 September and 15 October 2018. (a) Allegations regarding procedural and substantial breaches of the law 46. The applicant contended that she had not been given the opportunity to defend herself in respect of the IQC ’ s ultimate findings that there had been concealment and false or inaccurate disclosure of assets by her, no such findings having been made at the conclusion of the administrative investigation. 47. The IQC had played an active role in collecting facts, evidence and information, going beyond the standard role of a tribunal which would usually give a decision upon hearing all of the parties ’ arguments. It had subsequently failed to secure the procedural guarantees, such as equality of arms, in the proceedings against her. It had been selective in the evidence it had used and relied upon against her and had not considered the analysis, evidence and arguments that she had submitted in response to the findings of the administrative investigation. 48. The IQC had not had any powers to interpret the previous declarations of assets that she had filed in accordance with the Asset Disclosure Act, which had been assessed positively by HIDAACI. For this reason, she argued that the IQC had retroactively applied section 31 of the Vetting Act to the 2003 declaration of assets. 49. The IQC had unreasonably shifted the burden of proof onto her for facts in respect of which she had not been obliged to submit any supporting documents. Furthermore, it had not considered the objective impossibility for the applicant to obtain all the supporting documents needed to substantiate the source of her partner ’ s income. 50. Lastly, the IQC had not held that she had amassed more than twice the amount of her lawful assets, which would have warranted her dismissal from office in accordance with Article D § 4 of the Annex to the Constitution. In fact, her assets had been half the amount of her lawful income. (b) Allegations regarding erroneous findings in respect of the re- evaluation criteria 51. As regards the flat measuring 101 sq. m, the applicant made three strands of arguments. Firstly, she argued that the IQC had misinterpreted the law by equating the conclusion of a legal transaction ( veprim juridik ) – with reference to the 2003 and 2005 off-plan contracts – to the acquisition of an “asset”. There had been no obligation for her to disclose legal transactions, including the off-plan contracts which had not contributed to the acquisition of an asset, under the Asset Disclosure Act and the Vetting Act. 52. Secondly, the applicant ’ s partner had carried out all the legal transactions in 2003 and 2005, the applicant not having been a party to them. He had disclosed the properties he had acquired, including the origin of income used, in the 2003 and 2005 declarations of assets, with no concealment thereof. She had disclosed their co-ownership in the 2011 declaration of assets, after her partner had decided to name her as joint owner with a 50% share of the flat in the registration of that property with the authorities. In this connection, she appended to her appeal a certificate issued by the Albanian company with which her partner had entered into an off-plan contract in 2003 and a certificate issued by her partner ’ s former Italian employer certifying that he had worked for them from 1995 to 2001. 53. Thirdly, as regards the calculation of her partner ’ s living expenses in Italy from 1992 to June 1995, the IQC had relied on figures corresponding to the period 2002 to 2004, when the cost of living had increased as a result of inflation caused by the replacement of the Italian lira with the euro. Furthermore, her partner had been lawfully employed from July 1995 to July 2000, as evidenced by copies of his employment contract and some salary slips. According to an empirical assessment of her partner ’ s income and expenditure, he had saved ALL 3,444,871.32 (EUR 27,586), which justified the acquisition of the flat in 2003. 54. As regards liquid assets, the IQC had not considered the fact that the expenses of certain business trips had been borne by her employer or host institutions or that the expenses of certain personal trips had been borne by host families. It had unjustly attributed all those expenses to her. Making her own assessment for 2007, 2009 and 2015, she argued that she had had sufficient income to cover all the necessary expenses. 55. As regards the complaint made by a member of the public, the applicant submitted that the member of the public had lodged a criminal complaint with the prosecutor ’ s office against two private individuals for alleged forgery of official documents. Following the institution of criminal proceedings by the prosecutor ’ s office, to which the member of the public had not been a party, in 2011 a Court of Appeal bench, of which her father had been a member, had decided that the prosecution of the private individuals was time-barred and had not examined the merits of the case. 56. The constitutional proceedings, which had been examined by a Constitutional Court bench, of which the applicant had been a member, had concerned a request submitted by the same member of the public about the outcome of a set of civil proceedings relating to the invalidation of a sale contract concluded between that person and a legal entity in 1999. As the constitutional proceedings had had no connection whatsoever with the criminal proceedings, she had not been faced with a conflict of interest so as to warrant the finding that she had undermined public trust in the justice system, as stipulated in section 61(5) of the Vetting Act. 57. In view of the above arguments, the applicant maintained that her dismissal from office had been disproportionate and that the proceedings before the IQC had been conducted in breach of the principles of lawfulness, fairness, impartiality, equality before the law and proportionality. The Appeal Chamber ’ s decision 58. On 16 July 2018 lots were drawn for the composition of the five-member panel of the Appeal Chamber and the applicant was notified accordingly. She was subsequently informed that her appeal would be examined in camera on 24 October 2018. 59. On 24 October 2018 the Appeal Chamber gave its decision, examining the applicable procedure before it as well as the applicant ’ s grounds of appeal. She was notified of the decision on 23 November 2018. (a) Preliminary findings 60. By way of general observation, the Appeal Chamber confirmed that the proceedings before it were governed by section 65 of the Vetting Act and, amongst others, sections 47, 49 and 51 of the Administrative Courts Act ( see paragraphs 153, and 194 - 96 below). Pursuant to sections 47 and 49(2) of the Administrative Courts Act, the Appeal Chamber declined to admit new evidence submitted by the applicant to the case file. It reasoned that she had not put forward any reasons for her inability to submit the new evidence to the IQC. It also declined to admit further evidence submitted on 15 October 2018, in accordance with section 49(6)(a) of the Vetting Act (see paragraph 146 below). The Appeal Chamber decided not to accept additional complaints made by other members of the public following the delivery of the IQC ’ s decision, as there were no grounds for an investigation. 61. Even though the applicant had not requested a public hearing in her appeal, the Appeal Chamber considered that it was not necessary to hold one as ( i ) the IQC had made an accurate and comprehensive assessment of the facts, (ii) there was no need to accept new evidence or assess new facts, (iii) the IQC had not committed any serious procedural breaches or provided an erroneous or incomplete statement of facts and (iv) there was no need to readmit the evidence which had been accepted by the IQC. 62. The Appeal Chamber clarified that the vetting bodies were empowered by sections 30, 32 and 33 of the Vetting Act as well as Article Ç § 4 and Article D of the Annex to the Constitution to consider an individual ’ s declarations of assets made since 2003 in order to verify whether the person being vetted owned more assets than he or she could lawfully possess or whether the person had made an accurate and complete disclosure of his or her assets and of assets belonging to other related persons. Since the statutory provisions had given a probative value to the annual declarations of assets, they could be regarded as having the same importance as the vetting declaration of assets. The IQC and Appeal Chamber would consider these declarations, together with other evidence, as a whole, in order to determine the circumstances of the case and make a just decision. The IQC would also examine the report drawn up by HIDAACI in order to determine its probative value and accuracy ( provueshmërinë dhe vërtetësinë ). 63. The Appeal Chamber further clarified that upon the closure of the administrative investigation, the IQC had informed the applicant of its preliminary findings in respect of each asset and shifted the burden of proof onto her. Final findings relating to concealment or inaccurate disclosure of assets were to be made after the person being vetted had submitted arguments and evidence in his or her defence. In this connection, the person being vetted was required to convincingly demonstrate the lawful source of his or her assets and income and to not conceal or inaccurately disclose assets in his or her possession or use. The re-evaluation process was an administrative/disciplinary procedure (never akin to a criminal process) ( proccesi i rivlerësimit është një procedurë administrative/ sanksionuese ( dhe asnjëherë një proces penal), which aimed at affording all the guarantees relating to the right to a fair hearing. 64. In the applicant ’ s case, the Appeal Chamber noted that the conclusion of the administrative investigation had related solely to the preliminary findings made by the IQC, in the absence of any arguments put forward by the applicant. The IQC had informed her of its findings and invited her to submit arguments and evidence to the contrary, following which it had continued the investigation. The IQC had adjourned the hearing of 25 April 2018 in order to fully examine the additional written submissions which she had submitted on the same date, as well as other supporting evidence which she had made available on 18 April 2018. This course of action had guaranteed the applicant ’ s right to a fair hearing. The IQC could not take a decision concerning concealment or false disclosure of assets during the administrative investigation, in so far as the proceedings had still been pending before it, a hearing had been due to take place and the applicant had had the right to present evidence and submissions. Had it done so, the IQC would have prejudiced the outcome of the case following the shifting of the burden of proof onto the applicant, who had been invited to submit evidence to the contrary. 65. The Appeal Chamber held that the IQC had removed the applicant from office for insufficient disclosure of assets and the fact that she, following the overall examination of the proceedings, had undermined public trust in the justice system ( ka cenuar besimin e publikut te sistemi i drejtësisë ). She had not been removed from office on account of having amassed total assets of more than twice the value of her lawful assets ( nuk e ka shkarkuar subjektin e rivlerësimit për efekt të kalimit të dyfishit të pasurisë së ligjshme ). Furthermore, the fact that she had received a positive assessment of her integrity background check did not call into question the inappropriateness of the false, inaccurate and insufficient disclosure of assets she had made. Section 61(3) of the Vetting Act did not require both these criteria to be negatively evaluated, as they each constituted a separate ground for dismissal from office. 66. Lastly, it observed that the IQC had secured the applicant ’ s right of access to the documents obtained during the administrative investigation; her case had been heard publicly within a reasonable time and by an independent and impartial tribunal. The IQC had taken its decision, after obtaining the applicant ’ s arguments, documents and evidence. For this reason, her right to a fair hearing had been respected. (b) Findings regarding the evaluation of assets (i) As regards the flat measuring 101 sq. m 67. The Appeal Chamber held that, by means of the off-plan contracts, the applicant had acquired rights in rem ( të drejtat reale ) to the flat which was the subject matter of the contract. Domestic law provided that the conclusion of a legal contract was a way of acquiring a property or rights in rem. The IQC had correctly concluded, following an examination of the documents in the case file, that the 2003 and 2005 off-plan contracts had concerned the transfer of rights in rem to a flat which would be constructed in the future against the payment of a price. The applicant and her partner, who had both signed the 2003 and 2005 off-plan contracts which had specified the object and price that had subsequently been paid, had acquired the rights in rem upon its conclusion. The applicant should therefore have disclosed the acquisition of this particular property at the relevant time, that is, in the 2005 declaration of assets, instead of waiting to disclose it in the 2011 declaration of assets after her partner had named her as joint owner with a 50% share of the flat. 68. Following an assessment of the documents in the case file, such as bank receipts, salary slips and payments relating to the scholarship in Italy, the Appeal Chamber observed that her partner had not convincingly demonstrated the lawfulness of his income ( nuk ka provuar bindshëm ligjshmërinë e të ardhurave ) for the period 1992 to 2000 in order to buy the flat in 2003. The IQC had not erred in the calculation of her partner ’ s expenses while he was a foreign student in Italy. 69. As regards the applicant ’ s partner ’ s income from his gainful employment in Italy during the period 1995 to 2000, the applicant had not submitted sufficient supporting documents or other evidence to justify that the income had been lawful, that is, subject to the payment of taxes, not least because her partner had worked on the black market. There was no information on how the income had been transferred to Albania, and the applicant had not been faced with an objective impossibility which could justify the destruction or loss of supporting documents proving the existence of lawful income. The applicant ’ s statements relating to the source of income remained of a declaratory nature and could not serve as proof of lawful income ( mbesin në nivel deklarativ dhe nuk justifikohet ligjshmëria e tyre ). 70. Lastly, considering the statements made by the applicant ’ s partner and taking into account all income that he had allegedly earned during his stay in Italy, his savings could not have been sufficient to buy the flat. Nor had the applicant had sufficient financial means in 2003 to contribute to its purchase. The applicant had not advanced any arguments challenging the authenticity of the 2003 off-plan contract or the payment of the sum indicated therein. 71. The Appeal Chamber concluded that the applicant and her partner had not had sufficient funds to buy the flat measuring 101 sq. m with lawful income, as declared by them. The applicant had therefore made a false declaration and concealed the asset. (ii) As regards the flat measuring 58.75 sq. m 72. The Appeal Chamber found that, having regard to the applicant ’ s financial situation, as evidenced by the 2009 declaration of assets, she had had sufficient income to acquire this property. It held that the IQC ’ s finding in respect of this asset was ill-founded. (iii) As regards the plot measuring 221.9 sq. m 73. The Appeal Chamber held that the applicant could not be blamed for having benefitted from the regularisation of a bigger plot of land, the size of which and corresponding price had been determined by the relevant public authority in 2013, when she had in fact requested that her property rights be regularised in respect of a smaller plot of land. It found that the IQC ’ s finding in respect of this asset was ill-founded. (iv) As regards the financial situation 74. At the outset, the Appeal Chamber emphasised that the applicant had not challenged before the IQC or Appeal Chamber the methodology applied by the IQC for the determination of the financial situation. Nor had she submitted any arguments challenging the calculation of living expenses. 75. The Appeal Chamber upheld the IQC ’ s decision to not accept a notarised statement which had been drawn up abroad, as the statement did not contain the elements required to be considered valid under domestic law and used in the proceedings against the applicant. As regards certain travel expenses, the Appeal Chamber held that the applicant had not submitted supporting documents to convincingly demonstrate the legitimate source used to cover the expenses. As regards other travel expenses, the Appeal Chamber held that the IQC had not considered them in the determination of the expenses borne by the applicant. As regards the cash (EUR 15,000) that her partner had not disclosed over the years, the Appeal Chamber found that he had acted in breach of his statutory obligations. 76. The Appeal Chamber carried out a reassessment of the applicant ’ s and her partner ’ s assets and liabilities for 2007, 2009, 2015 and 2016, the results of which differed from the IQC ’ s findings and the applicant ’ s submissions. It still found that the applicant had lacked lawful sources of income to justify her liquid assets of a total amount of ALL 1,288,258.27 (approximately EUR 10,277, and, also compare with the IQC ’ s finding in paragraph 31 above). 77. The Appeal Chamber further pointed to the existence of two foreign bank accounts held by the applicant and her partner in 2015 and 2016 (see paragraph 11 above), stating that it was not apparent how the money had been deposited or transferred, there having been no disclosure of those accounts in the periodic annual declarations of assets. The applicant and her partner had therefore been unable to convincingly demonstrate how they had opened the accounts and conducted financial transactions. 78. The Appeal Chamber concluded that: “the applicant [has] not convincingly explain[ed] the lawful source of these monetary amounts; she [has] attempt[ed] to conceal and present the liquid assets inaccurately; and, she and [her partner] have not justified the lawfulness of the income for these monetary amounts ( nuk shpjegon bindshëm burimin e ligjshëm të këtyre shumave monetare, përpiqet të fshehë dhe të paraqesë në mënyrë të pasaktë pasurinë në likuiditete, si dhe ajo vetë dhe personi i lidhur me të nuk kanë justifikuar ligjshmërinë e të ardhurave për këto shuma monetare )”. (v) As regards the mortgage of USD 40,000 79. The Appeal Chamber found that the mortgage had been disbursed for its intended purpose, and held that the IQC ’ s finding in this respect was ill-founded. (vi) As regards the plot measuring 666 sq. m 80. The Appeal Chamber upheld the IQC ’ s finding that the applicant had made an incorrect disclosure in 2003 as regards her share in the plot measuring 666 sq. m, which had belonged solely to her mother. (vii) As regards the flat measuring 89.16 sq. m 81. The Appeal Chamber held that, as regards the flat measuring 89.16 sq. m, there had been an inaccurate disclosure in the declaration submitted by the applicant ( jemi përpara pasaktësisë në deklarim ) instead of a false disclosure as the IQC had found. (c) Findings regarding the evaluation of professional competence 82. The Appeal Chamber upheld the IQC ’ s finding that, following a complaint by a member of the public, the applicant had failed to recuse herself from proceedings before the Constitutional Court. It appears from the Appeal Chamber ’ s decision that the applicant, as a member of the Constitutional Court ’ s bench, had examined a constitutional complaint lodged by a member of the public of unfairness in a set of civil proceedings concerning the invalidation of a sales contract entered into between the member of the public and a legal entity. The member of the public had made available to the Constitutional Court a decision given in 2011 by a bench of the Tirana Court of Appeal, of which the applicant ’ s father had been the rapporteur, which had decided that the criminal proceedings against two individuals, who had been convicted of forgery of an administrative property decision by the first-instance court, were time-barred. Those individuals had been an interested party in the constitutional proceedings ( kanë qenë persona të interesuar në gjykimin kushtetues ). 83. While at first glance there were two separate sets of proceedings, one criminal and the other civil, the parties to the proceedings were almost the same but in different procedural positions. The subject matter of both sets of proceedings appeared to be different; however, the primary cause thereof was the privatisation of a building and the validity of the property title of a plot of land, in respect of which criminal proceedings against some individuals had been instituted and subsequently declared time-barred. The applicant had not recused herself from examining the constitutional complaint, even though a copy of the decision given by the Court of Appeal, in the composition of which the applicant ’ s father had been the rapporteur, had been included in the Constitutional Court ’ s case file. The applicant ’ s failure to recuse herself from the proceedings had not ensured respect for the principle of impartiality and had given rise to doubts as regards the objective test, as a result of which public trust in the justice system had been undermined. In the Appeal Chamber ’ s view, the applicant ’ s recusal would not have hampered the examination of the constitutional complaint by a quorum of the Constitutional Court, as required by law. (d) Conclusion 84. The Appeal Chamber upheld the IQC ’ s decision as regards the applicant ’ s dismissal from office. (e) Separate opinion 85. A judge of the Appeal Chamber (I.R.) appended a separate opinion ( mendim paralel ), which did not affect her vote in favour of the applicant ’ s dismissal from office. She mainly referred to the findings in respect of the flat measuring 101 sq. m. In her view, the off-plan contracts, which had not been disputed by the applicant, constituted solid evidence that that asset had not been acquired solely with the income of her partner. As a result, the applicant had endeavoured to make an incorrect disclosure of the asset and had made a false disclosure of the source used for its creation. However, the judge departed from the Appeal Chamber ’ s findings in respect of the issues described below. 86. As regards the applicant ’ s financial situation, the separate opinion stated that the Appeal Chamber had not considered a number of her submissions concerning certain travel expenses she had incurred over the years. Those expenses, which had not been borne by the applicant and in respect of which she had submitted evidentiary support, had been wrongly attributed to her. Those expenses had to be deducted from the total amount determined by the Appeal Chamber (see paragraph 76 above), and the resulting amount would have been ALL 478,392 (approximately EUR 3,849) or less. Consequently, in view of the relatively low value and the length of the applicant ’ s professional experience, the argument concerning a lack of income to justify her liquid assets could not constitute a solid basis ( premisë të qendrueshme ) to regard it as a reason for dismissal from office, within the meaning of Article D of the Annex to the Constitution and section 61(3) and 33(5)(ç) of the Vetting Act. 87. The separate opinion accepted the Appeal Chamber ’ s reclassification as “inaccurate disclosure” for the plot measuring 666 sq. m and the flat measuring 89.16 sq. m. However, it did not consider that those findings, which pertained to the 2003 and 2004 declarations of assets, were sufficient to constitute grounds for the applicant ’ s removal from office, in so far as there had been no intention to conceal the asset or make a false disclosure. 88. The separate opinion did not accept the Appeal Chamber ’ s findings as regards the evaluation of the applicant ’ s professional competence. Upon making an analysis of section 36(1)(c) of the Constitutional Court Act and Article 72 of the Code of Civil Procedure, the separate opinion argued that, having regard to the special nature of proceedings before the Constitutional Court, which was called upon to examine solely an alleged lack of impartiality in a set of civil proceedings and not the application of substantive law, domestic law did not provide for a situation like the one at hand, in which the applicant had had a conflict of interest in relation to the criminal proceedings in which her father had acted as rapporteur and at the end of which it had been decided that the criminal proceedings were time-barred. The member of the public had not raised any complaints about the applicant ’ s participation in the Constitutional Court ’ s bench. No private interests pertaining to the applicant or her father had been affected as a result of the outcome of the constitutional proceedings in which the applicant had sat as a member of the Constitutional Court ’ s bench. 89. In view of the reasoning that there had been no conflict of interest, the separate opinion considered that the conclusion that public trust in the justice system had been undermined was ill-founded. The separate opinion went on to state that “the fact that a party to a set of proceedings is dissatisfied, dismayed or in disbelief with a decision given by a bench of which the applicant was a member, does not necessarily constitute a sufficient element to regard it as undermining public trust, which ... should encompass a large number of individuals who should not fall into the category of parties to that set of proceedings ... ”. Events subsequent to the communication of the case 90. On 16 July 2020 the applicant informed the Court that criminal proceedings for forgery of documents had been opened against L.D. for having concealed important information during the process leading to his appointment as member of the Appeal Chamber. L.D. was a member of the bench of the Appeal Chamber which had examined the applicant ’ s appeal. 91. On 24 July 2020, following the institution of the criminal proceedings against L.D., the Appeal Chamber ordered his suspension from office [2]. 92. In the meantime, it appears that on 1 December 2020 [3] the Anti-Corruption and Organised Crime Court of First Instance found L.D. guilty of false disclosure of documents and sentenced him to six months ’ imprisonment, converted into twelve months ’ probation. L.D. has reportedly filed an appeal against that decision. | This case concerned a Constitutional Court judge who had been dismissed from office following the outcome of proceedings commenced in relation to her, as part of an exceptional process for the re-evaluation of suitability for office of all judges and prosecutors in the country, otherwise known as the vetting process2. The applicant complained, inter alia, that the vetting bodies had lacked independence and impartiality, in particular its members’ lacking the requisite professionalism and experience, having been appointed without any involvement of the judiciary. |
739 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1966 and lives in Krasnodon. A. Impact of the operation of the M04 motorway on the applicant ’ s home, private and family life 8. The applicant is the owner of a house on K. Street in Krasnodon, where she resides with her parents and her minor son, D. G. 9. According to the Government, since 1983 K. Street had been a part of the Soviet trans-republican motorway running from Chisinau ( Moldova ) to Volgograd ( the Russian Federation ). In 1998 (after disintegration of the USSR ) the Ukrainian authorities undertook a motorway stocktaking project and re-classified part of the motorway routed through the applicant ’ s street as the “M04 Kyiv- Lugansk-Izvarine motorway”. 10. According to the applicant, until the 1998 stocktaking project, the Chisinau -Volgograd motorway had never been routed through K. Street. Instead, it ran through P. Street in Krasnodon. K. Street, which is only six meters wide, is lined with private houses and gardens and is completely unsuitable for accommodating cross-town traffic. It has no drainage system, pavements or proper surfacing able to support heavy lorries and has been initially designed as an exclusively residential street. In 1998, in the course of the stocktaking project, the Department for Architecture and Urban Development of the Krasnodon City Council ’ s Executive Committee agreed, for the first time, that the M04 motorway should pass via K. Street. In support of this allegation, the applicant provided a copy of a letter sent by the abovementioned Department on 9 October 1998 addressed to the State Roads Design Institute ( Дорпроект ), in which it notified that agency of its consent to the M04 motorway being routed via a number of streets in Krasnodon, including K. Street. 11. According to the applicant, following this change in the routing of traffic, her house eventually became practically uninhabitable. It suffered heavily from vibration and noise caused by up to several hundred lorries passing by every hour. In addition, air pollution increased substantially over the years and numerous potholes emerged in the inadequate surface of the road. As a result of driving across these potholes, the vehicles emitted additional fumes and stirred up clouds of dust. In trying to deal with the potholes, the road service department started filling them with cheap materials, such as waste from nearby coal-mines, which had a high heavy ‑ metal content. 12. On 15 May 2002, responding to complaints from the street ’ s residents, the Lugansk Regional Sanitary Department ( Державна санітарно-епідеміологічна служба в Луганській області ) measured the level of pollution near several K. Street houses, including the applicant ’ s. During the test period of one hour, 129 vehicles were recorded as having passed by, 71 of which (55%) emitted pollutants (nitrogen dioxide, carbon monoxide, saturated hydrocarbons, lead, copper, etc.) in excess of applicable safety standards. It was further established that the content of copper and lead in dust stirred up exceeded the safety standards by 23 and 7.5 times respectively. The monitoring team also noted that the road surface was damaged. 13. By way of evidence concerning the damage to the applicant ’ s house, she presented a certificate dated 31 May 2002 signed by a group of assessors consisting of a city council deputy, the head of the local residents ’ association and a private individual. The group attested that it had examined the house and found that it had been damaged. In particular, the basement was cracked and the walls were covered with coal dust, which had allegedly been used during ad-hoc repairs of the road aimed at filling the potholes and subsequently disturbed by passing traffic. It also noted that the road surface near the applicant ’ s house had been badly damaged, thus amplifying vibrations from passing vehicles and causing vibration of the furniture inside the applicant ’ s house and pieces of plaster to occasionally fall from its ceiling and walls. 14. By way of evidence of health damage, the applicant presented medical certificates attesting that her father, mother and minor son were suffering from numerous diseases. The applicant ’ s father, born in 1939, was diagnosed, in particular, with chronic erosive gastroduodenitis, chronic bronchitis, pneumatic fibrosis, atherosclerosis, hypertension, cardiosclerosis and other diseases, cumulatively resulting in his being assessed in April 2001 as a “second (intermediate) degree” disabled person. 15. The applicant ’ s mother (Mrs Grishchenko ), born in 1 946, was found to be suffering, inter alia, from ulcers, chronic bronchitis, respiratory insufficiency, ischemic heart disease, deforming osteoarthritis, osteochondrosis and other diseases. 16. The applicant ’ s minor son D. G., born in 1994, started suffering from frequent respiratory tract diseases from 1997 onwards. In 1998 he was diagnosed as suffering from secondary immunodeficiency, non-rheumatic carditis and biliary dyskinesia. In 2000 D. G. was further diagnosed with hyperexcitability and hyperactivity disorder. During in-patient treatment of D. G. in November 2002, he was found to have excessive levels of copper and lead in his blood and urine and was diagnosed as suffering from chronic poisoning from heavy - metal salts, chronic toxic hepatitis and toxic encephalopathy. 17. On 12 July 2003 the Krasnodon Children ’ s Hospital recommended that the applicant ’ s son be resettled. The certificate noted, in particular: “Regard being had [to the fact] that the child has been living in an environmentally ‑ saturated area since his birth (considerable pollution of air and soil with salts of heavy metals, sulphur dioxide, saturated and unsaturated carbohydrates), it is necessary to change his place of residence”. B. Administrative decisions addressing damage caused by the operation of the M04 motorway 18. On numerous occasions Mrs Grishchenko complained on the family ’ s behalf to various authorities (including the President of Ukraine, the State Sanitary Department, the municipal authorities and the prosecutor ’ s office) about intolerable levels of nuisance and pollution from the M04 motorway. According to the case file, the first complaints were lodged by her no later than 2000. On various occasions analogous complaints were also lodged individually and collectively by other K. Street residents. It is unclear from the case file what actions, if any, were taken by the authorities in response to these complaints prior to May 2002. 19. On 28 May 2002, following the assessment of pollution levels undertaken on 15 May 2002 ( mentioned in paragraph 12 above ), the Lugansk Regional Chief Sanitary Officer ( головний санітарний лікар Луганської області ) ordered the Krasnodon Mayor to consider stopping through traffic using K. Street and repairing K. Street ’ s road surface. In his decision, that official mentioned that K. Street was designated as a temporary transit thoroughfare and that heavy traffic had ruined the surface of the road. He further noted that the level of air pollution on K. Street was in breach of the Law of Ukraine “On the Protection of the Air” (“the Clean Air Act”) and that such pollution could have adverse effects on the residents ’ health. 20. On an unspecified date Mrs Grishchenko complained to the Krasnodon Prosecutors ’ Office about the level of pollution and demanded the initiation of a criminal investigation into the situation. 21. On 13 June 2002 the Krasnodon Prosecutors ’ Office rejected her demand, having found that while the fact of excessive pollution was not in dispute, there was no basis for linking this situation to any criminal wrong ‑ doing on any authority ’ s behalf. There was no appearance that the decision to use K. Street as a transit road had been in and of itself unlawful. As regards repairing the road, the Prosecutors ’ Office had ordered the Krasnodon City Council ’ s Executive Committee (hereafter “the Executive Committee”) to redress violations of environmental law. It further notified Mrs Grishchenko that according to its information, repairs were planned for June 2002. 22. On 16 June 2002 K. Street was blocked to prevent the further passage of automobile traffic. 23. On 2 July 2002 the Lugansk Regional Prosecutors ’ Office further informed Mrs Grishchenko that on 18 June 2002 the Executive Committee had decided to order repairs to K. Street. 24. On 24 October 2002 the Chief of the Krasnodon Department of the Interior recommended that the municipality find funding for the repair of the surface of K. and L. Streets. 25. On 1 July 2003 the Lugansk Regional Department of the State Highways Agency ( Укравтодор – “the Highways Agency” ) wrote to the Mayor of Krasnodon, acknowledging that the section of the M04 road in the region was not sufficiently equipped to accommodate the increased traffic and that there was an urgent need to build transit routes bypassing populated communities, including Krasnodon. However, regard being had to the lack of available funding, these works had not been carried out and the Lugansk Department had asked its central headquarters to deal with the situation. It further suggested that the Krasnodon municipality should renovate the in ‑ town part of the road using funds garnered from automobile tax retained by the city treasury. 26. On 6 June 2006 the Municipal Housing and Municipal Maintenance Department informed the Executive Committee that repairing the surface of K. Street had been entered into the Urban Development Plan for 2006. However, no funding for the works had ever been received. It further noted that Krasnodon lacked any alternative roads meeting the standards of a transit thoroughfare and that the use of K. Street for this purpose – which it was unequipped for – had resulted in heavy deterioration of its surface. 27. On 27 June 2006 the Lugansk Regional Chief Sanitary Officer confirmed in his correspondence that the passage of vehicles through K. Street had been impossible, the street having been blocked by concrete blocks and other barriers. 28. On 24 November 2010 the applicant informed the Court, without providing any supporting materials, that the use of K. Street as a motorway had been recently restarted without any in-depth repairs having been carried out. C. Civil proceedings against the Krasnodon City Council ’ s Executive Committee 29. In 2001 Mrs Grishchenko lodged a civil claim on the applicant ’ s behalf, seeking to oblige the Krasnodon City Council ’ s Executive Committee to resettle the family and to pay 5,000 hryvnias (UAH ) in compensation for damage caused to their house and health by the operation of the M04 motorway. 30. In the course of the trial, the court examined written evidence presented by the applicant and questioned officials of the municipal Architecture, Housing and Road Maintenance Departments, and officers from the traffic police. The Architecture Department official stated that K. Street was seven metres wide; it had no drainage or pavements because there was no funding available for constructing these amenities. The Housing Maintenance Department official acknowledged that his department was partly responsible for K. Street ’ s maintenance, which was to be funded by the Highways Agency and from automobile taxes. As the funding had not been forthcoming, the street had not been maintained properly. He also opined that the damage to the applicant ’ s house had more likely been caused by construction flaws than by the operation of the motorway. The official from the Road Maintenance Department submitted that K. Street, being part of a motorway, was to be managed by it jointly with the Highways Agency. Finally, a traffic police officer submitted that for several preceding years there had been no complaints of traffic accidents on K. Street and that twice a year the traffic police examined the state of the road. 31. On 18 January 2002 the Krasnodon Court rejected Mrs Grishchenko ’ s claim. The full text of its reasoning reads as follows: “It has been established in court that K. Street in Krasnodon hosts the M04 Kyiv ‑ Lugansk-Izvarine motorway. The plaintiff did not provide the court with evidence that on account of the Executive Committee ’ s fault the road is operated in breach of technical requirements existing for this category of roads. The plaintiff did not specify which particular provisions have been breached. In addition, the plaintiff did not provide evidence that it is the [ Executive Committee ’ s ] fault that her lawful rights have been infringed, namely, [that] her house has been destroyed, [and that] herself and her family suffer from various illnesses, resulting in mental distress. Based on the above, the court considers it necessary to reject the claim as ill ‑ founded ... ” 32. Mrs Grishchenko appealed. Referring primarily to Article 50 of the Constitution of Ukraine and the Clean Air Act, she noted, in particular, that by focusing on the issue of the road ’ s maintenance, the first-instance court had deviated from the object of her claim. In fact, instead of seeking to oblige the plaintiff to repair the street, she had demanded resettlement, as in her opinion the street was completely unsuitable for hosting a motorway in the first place. The defendant had been at fault, not only for allowing through traffic, but also for failure to organise its regular supervision by traffic police, environmental and sanitary services to ensure safety, and anti-pollution measures. The claimant asserted that the witnesses had presented inaccurate data. In particular, there had been numerous traffic accidents on K. Street, and a recent police response to one of the residents ’ complaints about that issue had been included in the case file. Mrs Grishchenko further complained that the court had failed to summon officials from the environmental and sanitary services to present comprehensive information about the environmental situation around the road and so had failed to ensure her and her family ’ s right of access to environmental information. 33. On 10 June 2002 the Lugansk Regional Court of Appeal dismissed this appeal. The full text of the court ’ s reasoning was as follows: “Rejecting the claim of Grimkovskaya N. N., the court lawfully concluded that the M04 Kyiv- Lugansk-Izvarine motorway has been assigned on the basis of full managerial maintenance to the [Highways Agency] ... and not to the Krasnodon City Council ’ s Executive Committee. The plaintiff did not provide the court with any evidence that the defendant had wrongly caused her non-pecuniary damage and did not specify the legal basis for compensation of the [alleged] non-pecuniary damage and [for] resettlement ...” 34. On 8 July 2002 Mrs Grishchenko appealed in cassation. She submitted that in her view the Krasnodon City Council ’ s Executive Committee had been the proper defendant. In support of this argument, she provided a letter from the Highways Agency dated 6 June 2002 informing her that K. Street was not on its books and that it was to be managed by the municipality. She further alleged that the court had never examined whether the decision of the Krasnodon City Department for Architecture and Urban Development taken in October 1998 to route through traffic via K. Street had been lawful and reasonable. She considered that it had been unlawful to turn a six- metre -wide street into a motorway, especially in light of the subsequent failure of the municipality to organise proper environmental monitoring and management of the road. Mrs Grishchenko additionally mentioned that the first measurement of pollution levels had been carried out only in May 2002, following numerous complaints by the street ’ s residents. 35. On 21 July 2003 the Supreme Court of Ukraine rejected Mrs Grishchenko ’ s request for leave to appeal in cassation. i. ensure appropriate protection of the life, health, family and private life, physical integrity and private property of persons in accordance with Articles 2, 3 and 8 of the European Convention on Human Rights and by Article 1 of its Additional Protocol, by also taking particular account of the need for environmental protection; ii. recognise a human right to a healthy, viable and decent environment which includes the objective obligation for states to protect the environment, in national laws, preferably at constitutional level; iii. safeguard the individual procedural rights to access to information, public participation in decision making and access to justice in environmental matters set out in the Aarhus Convention; ...” | The applicant complained in particular about the re-routing in 1998 of a motorway via her street, six-metres wide and in a residential area and entirely unsuitable for heavy traffic. She also submitted that the municipal authorities had subsequently failed to ensure regular monitoring of the street to keep in check pollution and other nuisances. |
236 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977 and lives in Gabrovo. At the relevant time he was unemployed. 6. At about 9 p.m. on 11 November 1999 the applicant and Mr D.M., after having consumed alcohol, went to the flat of Mr G.I., apparently with the intention of recovering certain items which Mr D.M. ’ s former girlfriend had left there. A violent incident ensued and the police, who were called by neighbours, arrested the applicant and Mr D.M. 7. On 12 November 1999 a police officer drew up a report describing the applicant ’ s conduct on the previous evening. On the basis of this report, in a decision of 19 November 1999 the mayor of Gabrovo found the applicant guilty of breaching section 2(1) of municipal by-law no. 3 (see paragraph 25 below) and fined him 50 Bulgarian levs (BGN). The mayor explained that, while drunk, the applicant had broken down the door of Mr G.I. ’ s flat and had beaten him up. These actions had constituted a breach of public order and an expression of manifest disregard towards society, contrary to the above - mentioned provision. The decision, which specified that it was subject to judicial review within seven days after being served on the offender, was not served on the applicant, whose address was unknown. It was put in the file and considered as constructively served under section 58(2) of the 1969 Administrative Offences and Penalties Act ( see paragraph 28 below). The applicant did not learn about it within the time ‑ limit for seeking judicial review and the decision became final. 8. Some time later the prosecution authorities charged the applicant with inflicting “ intermediate ” bodily harm on Mr G.I., contrary to Article 129 § 1 of the 1968 Criminal Code, and breaking into his home, contrary to Article 170 § 2 of that Code (see paragraphs 18 and 19 below). They alleged that he had acted in concert with Mr D.M. 9. The applicant ’ s trial took place before the Gabrovo District Court between 9.30 a.m. and 12.40 p.m. on 1 December 2000 and between 1.30 p.m. and 4 p.m. on 14 November 2001. He was represented by two lawyers. It is unclear whether they were retained by him or appointed by the court. The court heard the two co ‑ accused, three experts and five witnesses. It admitted numerous documents in evidence and heard the parties ’ closing argument. 10. In a judgment of 14 November 2001 the Gabrovo District Court found the applicant guilty of inflicting “ intermediate ” bodily harm on Mr G.I. It found him not guilty of committing this offence in concert with others and not guilty of entering another ’ s home by force. It sentenced him to eighteen months ’ imprisonment. The court found that Mr D.M. alone had broken down the door of Mr G.I. ’ s flat and that the applicant had entered the flat after him. The court further found that in the ensuing scuffle the applicant had broken two of Mr G.I. ’ s teeth, which amounted to “ intermediate ” bodily harm, but at the same time held that in committing this act the applicant had not acted in concert with Mr D.M., because the latter had not hit Mr G.I. in the head. 11. The applicant appealed to the Gabrovo Regional Court. He drafted the appeal himself. Mr D.M. did not appeal. 12. The Gabrovo Regional Court held a hearing on the morning of 2 April 2002. The counsel previously appointed by the court for the applicant did not show up and new counsel was thus appointed. The applicant said that the new counsel was acquainted with his arguments and the case, and that he agreed to be defended by her. The record of the hearing says that the newly appointed counsel took half an hour to acquaint herself with the file; according to the applicant, she only had ten minutes to do so, because, as shown by the record, the hearing started at 10 a.m. and finished at 10.10 a.m. 13. In her closing speech, counsel for the applicant argued that it was not certain whether he had hit Mr G.I. in the head. Even if that had been so, he had done so in self ‑ defence, because Mr G.I. had tried to shoot him with a gas pistol and he had panicked. It was furthermore unclear whether the blows allegedly administered by the applicant could result in the type of injuries sustained by Mr G.I. The experts ’ statements on this point had not been properly recorded. Counsel later filed a memorial previously drawn up by the applicant. 14. In a judgment of 9 April 2002 the Gabrovo Regional Court upheld the lower court ’ s judgment. It found that it had assessed the evidence properly and had established the facts correctly, and went on to say that there was no indication that the applicant had acted in self ‑ defence. 15. On 23 April 2002 the applicant appealed on points of law, again drafting the appeal himself. On 26 August 2002 he asked the Supreme Court of Cassation to appoint counsel for him. He relied on Article 70 § 1 (7) of the 1974 Code of Criminal Procedure (see paragraph 20 below) and asserted that he had no legal knowledge and could not afford to retain counsel, whereas the interests of justice required that he be legally represented because he risked imprisonment. 16. In a letter of 9 September 2002 the president of the Second Criminal Division of the Supreme Court of Cassation advised the applicant that it was not possible to appoint counsel for him, as the prerequisites of Article 70 of the 1974 Code of Criminal Procedure were not met. 17. The Supreme Court of Cassation held a hearing on 14 October 2002. The applicant acted pro se. The prosecution argued that his appeal should be dismissed. On 22 October 2002 the Supreme Court of Cassation, which had the power to quash, vary or reverse the lower court ’ s judgment, decided to uphold it. It found that the lower court had properly established the facts, had fully examined all relevant issues, and had not breached the rules of procedure. | This case concerned in particular the applicant’s complaint that the central element of charges brought against him for breaching public order – following an incident in which he broke down the door of a flat and beat up the occupant – were essentially the same as for which he had already been fined in administrative proceedings. |
30 | Affiliation- and inheritance-related rights | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1940 in Troschenreuth, in the former German Democratic Republic (GDR), and lives in Bayreuth. A. Background to the case 6. The applicant is the natural and only daughter of Mr A.W., who recognised paternity in 1951. She lived in the territory of the former GDR until 1984, while her father lived in the Federal Republic of Germany (FRG), having married. The father and the daughter corresponded regularly during that period. Between 1954 and 19 59, the applicant also visited her father and his wife once a year. After the applicant obtained an exit permit in 1984 for herself, her husband and her younger daughter, she left the GDR and moved to Bavaria. Thereafter the applicant visited her father on a regular basis until 2007. He died on 4 January 2009. B. Proceedings in the domestic courts 7. On 14 January 2009 the applicant applied to the Memmingen District Court for the right to administer her father ’ s estate, asserting the incapacity of her father ’ s wife to protect the applicant ’ s inheritance due to a grave illness, and notified the District Court of her inheritance claims. Furthermore, she asked to receive copies of all documents relating to the estate. She asserted that between 2002 and 2007 she had regularly visited her father at his retirement home and had talked to him on the telephone. Subsequently, her own health had prevented her from visiting. Telephone calls had been impossible because her father ’ s health had meant he had no longer been able to use a telephone. The retirement home had been in possession of her address and telephone number, and had phoned her on several occasions. 8. In a decision of 28 January 2009 the Memmingen District Court dismissed the applicant ’ s application, as there were no indications that the applicant ’ s father ’ s wife could not protect the inheritance. In addition, being born before 1 July 1949 and thus not being a statutory heir, she had no right to receive copies of documents about the estate. 9. On 6 February 2009 the applicant appealed to the Memmingen Regional Court, arguing in particular that she needed the power to administer the estate because her father ’ s wife suffered from dementia and that she was a statutory heir because she was her father ’ s natural daughter. 10. In a decision of 23 February 2009 the Memmingen Regional Court upheld the District Court ’ s decision refusing to give her the power to administer her father ’ s estate, holding that the applicant was not a statutory heir and thus had no right to apply. The Regional Court referred to the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act of 19 August 1969 (see paragraph 15 below) and to a decision of the Federal Constitutional Court of 8 December 1976, in which the provision had been found to be in conformity with the Basic Law (see paragraph 16 below). 11. On 8 March 2009 the applicant appealed to the Munich Court of Appeal, arguing that the application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act would discriminate against her and breach her inheritance rights and was therefore not in conformity with the Basic Law. The applicant pointed out that in her case there was no need to protect the legitimate expectations of the deceased or other heirs as she was her father ’ s only daughter and her father had been separated from his wife for more than ten years when he had died. Furthermore, cultural and social changes within society had to be considered when interpreting the Basic Law. 12. In a decision of 14 May 2009 the Munich Court of Appeal dismissed the applicant ’ s appeal on the grounds that it was bound by the decisions of the Federal Constitutional Court in which the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act had been found to be in conformity with the Basic Law. In the Court of Appeal ’ s view, the provision did not contravene the Basic Law, despite German reunification, as the Federal Constitutional Court had held in a decision of 20 November 2003 (file no. 1 BvR 2257/03 ). 13. On 17 July 2009 the applicant lodged a constitutional complaint with the Federal Constitutional Court, claiming discrimination as a result of the application of the aforementioned provision. According to her there were no apparent reasons why children born outside marriage should be treated differently from those born within marriage. That was particularly true in her case because she was her father ’ s only child. The applicant argued that the Munich Court of Appeal, when considering an appeal, had to respect Article 6 § 5 of the Basic Law, which provided that children born outside marriage must be provided by legislation with the same opportunities for physical and mental development and for their position in society as those enjoyed by children born within marriage. That provision prohibited a generalised application of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act. 14. In a decision of 8 December 2009 the Federal Constitutional Court declined to consider the complaint, which it considered inadmissible for lack of sufficient substantiation (no. 1 BvR 2021/09). It observed, in particular, that the applicant had failed sufficiently to address the arguments of the Munich Court of Appeal ’ s decision. As the applicant doubted the validity of the first sentence of section 12(10)(2) of the Children Born outside Marriage (Legal Status) Act, which had previously been declared valid by the Federal Constitutional Court, she had been obliged to give further reasons, which she had failed to do. | The applicant in this case complained that she could not assert her inheritance rights after her father’s death in 2009, as she had been born out of wedlock and before a cut-off point provided for by legislation in force at the time. Notably, children born outside marriage before 1 July 1949 were excluded from any statutory entitlement to inherit and from the right to financial compensation. |
864 | In the context of criminal justice | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1964 and is currently detained in HM Prison Brixton. 8. In 1997, there were a series of armed robberies of mini-cab drivers in and around Wolverhampton. Each robbery was carried out in the same way by a person posing as a passenger at night. Each involved violence. The first robbery was committed on 15 April 1997 (for which the applicant was later acquitted). On 17 April 1997, the applicant was arrested and agreed to an identification parade on 15 May 1997. He was released pending the parade. 9. On 30 April 1997, a second robbery, later alleged in count 2 of the indictment against the applicant, was committed. On 1 May 1997, the applicant was arrested in relation to that offence. The applicant again agreed to participate in an identification parade to be held on 15 May and was then released. However, on that date, the applicant did not appear for the identification parade but instead sent a doctor's note stating that he was too ill to go to work. A subsequent identification parade was set for 5 June 1997. Notice to that effect was sent to the applicant's residence. He did not appear for identification on the specified date, stating later that he did not receive such notification as he had changed address. 10. On 27 June 1997, the applicant was arrested on an unrelated matter at which time he gave the address to which the previous notification was sent. 11. On 21 July 1997, a robbery, for which the applicant was charged in count 3 of his indictment, occurred. The applicant was arrested on 1 August 1997 and later acquitted on this count. The applicant agreed to stand on an identification parade scheduled to take place on 11 September. On 3 September, the applicant was interviewed with respect to another unconnected matter and said that he would attend the parade on 11 September. On that date, he did not in fact attend. 12. On the 17 September 1997, the robbery alleged in count 4 occurred, while a further robbery alleged in count 5 took place on 24 October 1997. 13. An important part of the prosecution's case rested almost entirely on the ability of the witnesses to visually identify the perpetrator. For this reason, submitting the applicant to an identification parade was of great importance for the prosecution. Given the failure of the applicant to attend the arranged identification parades, the police decided to arrange a video identification parade. Permission to covertly video the applicant for identification purposes was sought from the Deputy Chief Constable for the West Midlands Police Force under the Home Office Guidelines on the Use of Equipment in Police Surveillance Operations 1984. 14. On 19 November 1997, the applicant was taken from Strangeways Prison (where he was being detained on another matter) to the Bilston Street police station. The prison, and the applicant, had been informed that this was for identification purposes and further interviews concerning the armed robberies. On arrival at the police station, he was asked to participate in an identification parade. He refused. 15. Meanwhile, on his arrival at the police station, he was filmed by the custody suite camera which was kept running at all times and was in an area through which police personnel and other suspects came and went. An engineer had adjusted the camera to ensure that it took clear pictures during his visit. A compilation tape was prepared in which eleven volunteers imitated the actions of the applicant as captured on the covert video. This video was shown to various witnesses of the armed robberies, of whom two positively identified the applicant as involved in the second and fourth robberies. Neither the applicant nor his solicitor were informed that a tape had been made or used for identification parade purposes or given an opportunity to view it prior to its use. 16. The applicant's trial commenced in January 1999. 17. At the outset, the applicant's counsel made an application pursuant to section 78 of the Police and Criminal Evidence Act 1984 that evidence of the video identification should not be admitted. The judge heard submissions from the prosecution and defence during a preliminary hearing (“ voir dire ”) on 11 and 12 January 1999. On 14 January 1999, the trial judge ruled that the evidence should be admitted. When shortly afterwards this judge became unable to sit, the new trial judge heard the matter afresh. In his ruling of 26 February 1999, he found that the police had failed to comply with paragraphs D.2.11, D.2.15 and D.2.16 of the Code of Practice, inter alia with regard to their failure to ask the applicant for his consent to the video, to inform him of its creation, to inform him of its use in an identification parade, and of his own rights in that respect (namely, to give him an opportunity to view the video, object to its contents and to inform him of the right for his solicitor to be present when witnesses saw the videotape). However, the judge concluded that there had been no unfairness arising from the use of the video. Eleven persons had been filmed for comparison purposes rather than the required eight and were all within comparative height, age and appearance. Even though the applicant's solicitor was not present to verify the procedures adopted when the witnesses were shown the videos, the entire process had been recorded on video and this had been shown to the court which had the opportunity of seeing exactly how the entire video identification process had been operated. The judge ruled that the evidence was therefore admissible. 18. The trial lasted 17 days, the applicant and 31 witnesses giving live evidence. During the course of it, the applicant discharged all his legal representatives (leading and junior counsel and solicitors) and conducted his own defence as he was dissatisfied with the way his defence was being conducted. In his summing-up to the jury, the trial judge warned the jury at considerable length about the “special need for caution” before convicting any defendant in a case turning partly on identification evidence and told the jury to ask themselves whether the video was a fair test of the ability of the witnesses to pick out their attacker, telling them that if it was not a fair test they should not give much, if any weight, to the identifications and also that if there was any possibility that the police planned a video identification rather than a live identification to put the applicant at a disadvantage, they could not rely safely on the video identification evidence. The jury were also made aware of the applicant's complaints about the honesty and fairness of his treatment by the police and the alleged breaches of the code. 19. On 17 March 1999, the jury convicted the applicant of three counts of robbery and acquitted him of two others. The judge sentenced him to five years' imprisonment. 20. The applicant applied for leave to appeal against conviction, inter alia, alleging that the trial judge had erred in not excluding the evidence obtained as a result of the covert identification video and that the conviction was unsafe due to significant and substantial breaches of the code of practice relating to identification parades. Leave was granted by a single judge of the Court of Appeal. 21. On 3 April 2000, after a hearing at which the applicant was represented by counsel, the Court of Appeal rejected his appeal, finding that the trial judge had dealt with the matter in a full and careful ruling, that he had been entitled to reach the conclusion that the evidence was admissible and that he had directed the jury to give the evidence little or no weight if it was in any way unfair. It refused leave to appeal to the House of Lords. 22. On 14 April 2000, the applicant applied to the House of Lords. It rejected the application. The solicitors claimed that they were informed on 7 July 2000. | The applicant was arrested in connection with a series of armed robberies of mini-cab drivers and released pending an identification parade. When he failed to attend that and several further identification parades, the police requested permission to video him covertly. The applicant complained that the police had covertly videotaped him for identification purposes and used the videotape in the prosecution against him. |
527 | Attacks on Roma villages and destruction of houses and possessions | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are Ukrainian nationals of Roma ethnicity. Before 10 September 2002 the applicants lived in the village of Petrivka, Ivanivskyy District, Odessa Region (hereinafter also “the village”). They currently live in Berezivka District, Odessa Region. A. The events of 7 to 10 September 2002 7. On 7 September 2002 a 17-year-old ethnic Ukrainian was murdered in the village, allegedly by a Romany man who was apparently convicted of the murder afterwards. It appears that this occurred in the course of an altercation between Romany men and other youngsters from the village at a local bar or dancehall. 8. On 8 September 2002 a crowd of village residents gathered and demanded that the Roma be expelled from the village. According to the statement of the village mayor, Mr M.S., made in the course of a subsequent criminal investigation, the local officials attempted to defuse the situation and urged the villages not to do anything illegal. 9. On the same day the village council met. Among those present were: a representative of the Ivanivskyy District State Administration (“the District Administration”) and the head of the Ivanivskyy District Police Department (“the District Police Department”). According to the minutes of the meeting submitted by the applicants, in his opening remarks the mayor said, inter alia : “... today a cruel crime was committed [in the village] by a group of residents of Gypsy ethnicity. One student of [the village high school] was murdered and three others were injured and are now in hospital in a serious state. This crime was made possible by the fact that no appropriate measures are being taken against them in the event of their [engaging in crimes]. Everybody knows that the spread of drug addiction, which is taking place in our village, is their fault. Today a meeting of villagers took place at which a negative opinion was expressed about the banditry and other [forms of crime] on the part of this category of people ... I invite the council members to speak responsibly and to express their opinion about the crime committed and about the decision of the villagers. I would like this meeting not to turn into something which aggravates inter-ethnic relations.” 10. At the close of the meeting the council decided, in particular, to “support the decision of the meeting of the village residents to expel persons of Gypsy ethnicity from the village”. 11. On 9 September 2002 the village council met again. The heads of the District Administration and the District Police Department and the chairperson and members of the Ivanivskyy District Council were present. The village council examined the question of “bringing the decision of the village council [of 8 September] concerning the expulsion of the persons of Gypsy ethnicity into compliance with legal norms”. The head of the District Administration invited the village council members to carefully consider the wisdom of their decision, drawing a clear line between crime ‑ related problems and inter-ethnic relations. A council member, D., stated that whatever the wording of the decision it would have no legal consequences and that legal action against drug dealers would also be ineffective. In fact, it was not possible to keep the situation under control. D. furthermore stated that the neighbours of the Roma residents were saying that it was necessary to cut off their gas supply and to burn down the Roma’s houses. At the close of the meeting the village council decided to ask law enforcement authorities “to ensure the expulsion of socially dangerous individuals, regardless of ethnic origin, from the village”. 12. On the evening of the same day the mayor and the local police advised the applicants to leave the village, as a “pogrom” was about to start. Electricity and gas supplies to their houses were cut. Subsequently, in the course of the night of 9-10 September 2002 a crowd of several hundred people, allegedly led by a certain Mr O.M., ransacked the houses belonging to the Roma, destroying their belongings. A number of police officers were present but did not intervene to prevent the looting and apparently concentrated solely on preventing human casualties. The house where the first applicant lived had burned down. According to the Government, the results of the expert analysis of the causes of the fire were inconclusive (see paragraph 118 below). B. The applicants’ statements concerning their particular situation 13. The applicants submitted a number of written statements from the applicants addressed to Ms Duducehava, the leader of a Roma association, and Mr Stoyanov, a lawyer who represented a number of applicants in the domestic criminal proceedings (see below). The statements bear various dates from 2004 and 2007, contain descriptions of the events of 7 ‑ 10 September 2002, and ask for help in dealing with the authorities. According to the general tenor of the statements, the applicants’ had been urged to leave by the police prior to the pogrom, and in their absence their houses had been ransacked by the mob – in particular, doors and windows had been smashed, and furniture and belongings destroyed or stolen. 14. According to the fifth applicant’s statement, dated 17 November 2007, she and the fourth applicant (her husband) had been away from the village at the time of the events and had only learned about them when they had returned on 20 September. She had had to sell her house “at half the price” (“ за полцены ”), as had other Roma victims of the pogrom. The seventh, eighth, thirteenth and sixteenth applicants’ statements, as well as the statements of some other former Roma residents of Petrivka, were similarly worded, speaking of the houses having been sold for less than their normal price (for instance, Mrs M. Burlya, the second applicant’s wife, characterised the price for which her house had been sold as “very cheap”). 15. The applicants submitted eight undated photographs showing the ruins of one or several houses, certain photographs showing signs of fire. The origin of these photographs is unclear. In her statement to Ms Duducehava in 2004 the sixth applicant referred to certain photographs showing damage to her and her relatives’ houses. 16. The seventh and eighth applicants stated that all the Roma had left the village before the attack started. 17. Applicants identified in the Appendix asserted in their statements to Ms Duducehava, Mr Stoyanov or to the police in the course of the subsequent criminal investigation that they had been away from the village at the time of the events of 7-10 September 2002 and of the attack and had only learned about it later. 18. In her statement to Mr Stoyanov dated 18 November 2007 the ninth applicant stated that she had been at home with her two granddaughters (aged ten and fifteen at the time) when the attack started. Stones had started flying through the windows, four attackers had broken down the door and started shouting, and the older granddaughter had pleaded with the attackers not to kill them. The attackers had not touched the applicant or her granddaughters; the applicant had then fled. However, in her statement to the police dated 26 September 2002 this applicant stated that she had fled the village prior to the attack and had returned the next day to find her home ransacked. In her statement (addressed to Ms Duducehava) and dated 13 June 2004 this applicant complained of having been expelled from her home but did not mention that she had personally witnessed any attack. C. Aftermath of the events 19. According to a report published on 20 September 2002 in the regional newspaper Porto Franko and information given at a press conference held on 12 September 2002 by the Secretary of State ( Державний секретар ) for the Ministry of the Interior and by the head of the Odessa Regional Police Department (“the Regional Police”), police officers had been present in force and had observed the attack. However, they had not attempted to prevent or stop it, apparently concentrating solely on preventing casualties. 20. The events were reported in a number of regional and national newspapers. 21. The applicants alleged that after the attack they had had to move to another town and live with family and friends in overcrowded and inadequate conditions. D. Criminal investigation 22. On 10 September 2002 the Ivanivka district police initiated criminal proceedings against persons unknown on suspicion of disorderly conduct committed in a group ( хуліганство вчинене групою осіб ). 23. On 10 September 2002 police investigators from Ivanivka, Berezivka, and several other districts conducted on-site examinations of the damaged houses in Petrivka (which included the taking of fingerprints). A regional police investigator conducted further on-site examinations in December 2002 and January 2003. 24. On 12 September 2002 it was decided to constitute an investigative team composed of a senior investigator from the regional police department and investigators and other police officers from the Ivanivka district and three other districts. 25. From 12 September to 9 October 2002 the regional police investigator obtained a number of expert opinions concerning the material found on the scene (notably assessing the damage there). 26. On 20 September 2002 an officer of the Ivanivka police questioned neighbours of some of the applicants. Those neighbours stated that on the night of the attack they had seen around 150 and 300 people near the applicants’ houses. 27. From 23 September 2002 to 27 January 2003 at least sixty village residents, including O.М. and P.M. (who were later accused by the applicants’ representative Ms Duducehava of having a role in the attack ‑ see paragraph 36 below), were questioned by the police – four of them by Ivanivka police officers and the rest by the regional police investigator. The villagers generally stated that there had long been tensions in the village between the Roma and non-Roma populations (many mentioning that this was connected with the alleged involvement of Roma residents in the drug trade), and that on the night of 9 September 2002 several hundred individuals had ransacked the houses of the Roma residents. This had been done to ensure that Roma would be expelled from the village. Some expressed approval of the attackers’ actions (as having been triggered by the authorities’ inaction against the drug trafficking), but denied that they had personally taken part in the attack. 28. The police also questioned a number of applicants, who gave statements largely consistent with the account of events set out in paragraphs 7-17 above. 29. On 14 November 2002 a certain Mr V. – apparently a Roma and a Petrivka resident at the time – was questioned. He stated that on 9 September he had been called in to Ivanivka district police station and told that residents of Petrivka would be attacking Roma houses. Upon learning this, he returned to the village and helped to evacuate his family, as well as other Roma residents, to another village. 30. The police recognised the applicants listed in the Appendix as having the official status of aggrieved parties or of civil claimants (see paragraphs 53 and 54 below). 31. In January 2003 (in the summary provided by the Government the relevant dates seem to be misstated as being in January 2002 and January 2007) the regional police investigator questioned three officers of the “Berkut” special police unit. They stated that about 2,000 persons had participated in the pogrom. They had asked the officers not to interfere in their actions. They had entered the houses and asked the individuals there not to resist and to leave. 32. In February 2003 the police obtained an expert opinion in an attempt to identify the voices on a video cassette. It appears that the video cassette contained a recording of a meeting of village residents held before the pogrom. The expert concluded that no voice could be identified owing to the poor quality of the recording. 33. On 4 February 2003 the police suspended the investigation for failure to identify the perpetrators. On 17 February 2003 the regional prosecutor’s office ordered that it be resumed. 34. On 20 February 2003 the Ivanivsky district prosecutor’s office (“the DPO”) refused to institute criminal proceedings against the village council’s officials for lack of constituent elements of a crime in their actions. 35. On 1 April 2003 the regional police investigator suspended it again. 36. On 27 February 2005 Ms Duducehava, the chairperson of Romani Zbora, an NGO, wrote to the Odessa regional prosecutor’s office asking it to institute criminal proceedings against the persons who had participated in the attack and the officials who had allowed it. Specifically, she named Mr O.M., Mr P.M. and Mr I.D., all of whom, she alleged, had incited the attack; she named M.S., the chairman of the village council, and O.V., the head of the district police department, as being among the officials who had allowed it. She named the first fifteen and the seventeenth to nineteenth applicants as persons whose property had been damaged, summarising their statements to her (see, in particular, paragraph 13 above). 37. On 28 March 2005 the Odessa regional prosecutor’s office informed Ms Duducehava that an investigation into disorderly conduct had been initiated and suspended on 1 April 2003 but that operational measures were being taken to identify the perpetrators (see paragraph 58 below for a summary description of the legislative framework in respect of such measures). Twenty-three individuals, including those whose statements had been added to Ms Duducehava’s complaint, had been recognised as aggrieved parties or civil claimants. Concerning the failure of the police to prevent the disorderly conduct in question, the head of the Regional Police had imposed disciplinary sanctions on the police officers at fault. 38. On 21 November 2005 Mr I. Stoyanov, a lawyer representing a number of the applicants, complained to the President of Ukraine and the Prosecutor General that the crime committed had been incorrectly classified as merely disorderly conduct, even though it could be characterised as an act of discrimination and mass disorder. The identity of the guilty parties was well known. 39. On 31 December 2005 the head of the regional police informed Mr Stoyanov that the investigation had been suspended on 1 April 2003 and that the regional prosecutor’s office had examined the case and left the decision to suspend it in force. 40. On 25 January 2006 the DPO informed Mr Stoyanov of the decision not to institute criminal proceedings against the village officials (see paragraph 34 above) and stated that Mr Stoyanov could obtain information about the situation in the hooliganism case from the regional police, who were in charge of it. 41. On 27 January 2006 the Ivanivka district police took over the investigation in respect of the hooliganism case and decided to resume it. On 5 April 2006 they suspended it again. 42. On 22 August 2008 Mr Stoyanov wrote to the Prosecutor General’s Office asking to be informed about the progress of the operational measures to identify the perpetrators and to be allowed to study the case file. 43. On 25 September 2008 the DPO informed Mr Stoyanov that the investigation had been lawfully suspended and that the aggrieved parties could only examine the case file once the investigation had been completed. 44. The applicants submitted a copy of a letter from the district police dated 13 July 2009 addressed to Mr Stoyanov. The letter informed Mr Stoyanov, in response to his query, that on 10 February 2009 the investigation had been renewed and on 2 March 2009 suspended again for failure to identify the perpetrators. No reason for the alleged renewal was mentioned. The Government argued that the letter was not genuine (see paragraphs 88 to 91 below). E. Judicial proceedings 1. Quashing of the village council’s decision 45. On 21 March 2003 the Ivanivskyy District Court (“the District Court”), having heard an appeal by the DPO, quashed the village council’s decision of 9 September 2002 on the grounds that it was contrary to the Constitution and had been taken under the pressure exerted by a crowd of angry villagers in order to calm them down and prevent the lynching of the Roma. 2. Civil claim for damages 46. On 23 December 2005 the applicants (except the fourth and sixteenth) lodged with the District Court a civil claim for damages against the District Administration and the village council. 47. On 23 November 2007 the District Court rejected the applicants’ claim, holding that it fell within the jurisdiction of the Odessa District Administrative Court. No appeal was lodged. 3. Administrative proceedings for the investigating authorities’ inaction to be declared unlawful 48. On 3 May 2007 the first three and the fifth to nineteenth applicants lodged a claim seeking to have the failure of the DPO and the district police to investigate the incident declared unlawful. 49. On 9 February 2008 the Odessa Circuit Administrative Court rejected the claim without considering it on the merits, holding that it fell outside the jurisdiction of the administrative courts. On 17 March 2008 the Odessa Administrative Court of Appeal upheld this ruling. 4. Complaints to courts in the context of criminal procedure 50. On 5 June 2008 the District Court initiated proceedings concerning the claim brought by the first three and the fifth to nineteenth applicants under the Code of Criminal Procedure in which they challenged the decision to suspend the investigation. On 19 August 2008 and 8 April 2009 Mr Stoyanov lodged additional complaints on behalf of the first to third, sixth to fifteenth and seventeenth to nineteenth applicants in these proceedings. In those complaints, they stated that they had never been questioned and had never been recognised as aggrieved parties ( потерпілі ). They asked the court to order the police to recognise them as such. According to the applicants, at the time of the application to the European Court of Human Rights the proceedings were still pending before the District Court and no decision had been made. | The applicants, Ukrainian nationals of Roma ethnicity, submitted that they had been forced to flee their homes in a village in the Odessa Region following warnings of an anti-Roma attack. They complained in particular about this attack on their homes and alleged that the authorities had been complicit in or had at least failed to prevent or to investigate the attack effectively. |
1,049 | Service of a military character or substitute civilian service | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Thessaloniki. 6. On 15 September 1986 he was admitted to the Corps Officers’ Military Academy (medical section). He was paid a salary and was granted welfare benefits. He pursued academic studies free of charge at the University of Thessaloniki’s Faculty of Medicine, taking the six-year degree course for medical professionals in the national health system. 7. On 3 June 1993, on completion of his studies, he was appointed to the rank of second lieutenant in the army medical corps. 8. In accordance with Article 64 § 1 of Legislative Decree no. 1400/1973 on the status of officers of the armed forces, as applicable at the material time, the applicant had undertaken to serve in the armed forces for a period corresponding to three times the duration of his studies at the military academy – that is, eighteen years. The relevant provision was later amended by section 1 of Law no. 3257/2004 and the period in question was reduced to twice the duration of his studies – that is, twelve years. 9. On 18 January 1996 the Army General Staff organised a competitive examination for the recruitment of medical specialists. Officers in the medical corps, such as the applicant, were invited to apply in order to acquire a specialist qualification. The applicant was attached to the 424 General Military Hospital in Thessaloniki, where he worked as an intern from 26 July 1996 to 30 July 1997. Subsequently, from 30 July 1997 to 27 July 2001, he occupied a paid supernumerary position (by virtue of section 8 of Law no. 123/1975) at the Papanikolaou General Regional Hospital in Thessaloniki as a junior doctor specialising in anaesthesiology. 10. After completing his specialist training, which lasted approximately five years – during which time he was paid his salary as an army officer – the applicant gave an undertaking, in accordance with Article 64 § 7 of Legislative Decree no. 1400/1973, to serve in the army for a further five years. He provided a sworn declaration to that effect as required by Article 67 § 10 of the Legislative Decree. 11. The applicant served in the armed forces until 22 January 2006, when he resigned at the age of 37 as an anaesthetist with the rank of colonel. 12. By a notice of 12 September 2006, the Army General Staff informed the applicant that, pursuant to Article 64 of Legislative Decree no. 1400/1973, he was required either to serve in the armed forces for a further nine years, four months and twelve days or to pay the State a fee calculated on the basis of the period remaining to be served. 13. In a decision of 26 May 2007, the accounts department of the Army General Staff assessed the amount of the fee at 106,960 euros (EUR). The decision stated that the applicant could apply to the Court of Audit for judicial review, but that the application would not have suspensive effect as far as the payment procedure was concerned. 14. On 25 June 2007 the applicant applied to the Fifth Division of the Court of Audit for judicial review of the notice of 12 September 2006. He argued that Article 64 of Legislative Decree no. 1400/1973 was in breach of Article 22 § 4 of the Constitution (prohibition of all forms of compulsory labour) and Article 4 § 2 of the Convention, taken alone and in conjunction with Article 14. On 27 June 2007 the applicant also applied for a stay of execution of the decision of 26 May 2007. 15. On 5 July 2007 a division president of the Court of Audit made an interim order staying the execution of the decision of 26 May 2007. On 29 October 2007 the Fifth Division of the Court of Audit confirmed the stay of execution sought by the applicant. 16. In judgment no. 175/2009 of 13 February 2009, the Fifth Division of the Court of Audit dismissed the applicant’s application for judicial review as ill-founded. It held in particular that the fee to be paid by the applicant did not constitute the menace of a penalty, did not infringe the proportionality principle, had been calculated objectively and was designed to ensure that the State was refunded the expenses it had incurred in training regular members of the armed forces, who were also paid a salary throughout their basic and specialist training. 17. On 3 March 2009 the applicant appealed on points of law to the plenary Court of Audit. On 4 March 2009 he applied to the same court for a stay of execution of the decision of 26 May 2007. 18. On 17 March 2009 the President of the plenary Court of Audit made an interim order staying the execution of the decision in question. On 18 March and 9 April 2009, while those proceedings were ongoing, the Thessaloniki Tax Office ordered the applicant to pay the sum of EUR 106,960, plus EUR 2,139.20 in stamp duty and EUR 427.84 to the agricultural insurance fund. 19. On 21 October 2009 the plenary Court of Audit confirmed the stay of execution sought by the applicant. 20. On 10 May 2010 the Revenue Department of the Ministry of Finance informed the applicant that because the amount assessed in the decision of 26 May 2007 had not been paid by the end of the previous year, interest of EUR 13,143.24 had been charged for late payment. It also informed him that if he paid the outstanding amount by 31 May 2010, he would be entitled to an 80% discount on the interest. 21. On 26 May 2010 the applicant deposited the sum of EUR 112,155.69 at the Thessaloniki Tax Office. 22. In judgment no. 3230/2011 of 7 December 2011 (served on the applicant on 10 February 2012), the plenary Court of Audit partly allowed the appeal on points of law. 23. It found that the failure to include a period of five years – which had been essential for the applicant to complete his specialist training – as part of his total length of service was in breach of the proportionality principle enshrined in Article 25 of the Constitution. 24. It held that the period during which a medical officer worked towards obtaining a specialist qualification formed part of the officer’s actual military service. Accordingly, it quashed the Fifth Division’s decision as regards the finding that the applicant’s period of specialist training constituted years of study that should not be included in the calculation of his overall period of compulsory service. 25. It dismissed as ill-founded the ground of appeal alleging a violation of the Convention, reasoning as follows: “Article 64 § 7 of [Legislative Decree no. 1400/1973] ... is compatible with the provisions of the Constitution, the Social Charter and the Convention, in view of the fact that during the period of five years the medical officer serves the armed forces that have trained him or her, and it achieves the aim pursued, namely providing supervisory personnel for the armed forces, without the officer being required to work. As to the fee to be calculated in accordance with Article 64 § 16, this is a means of offsetting the expenditure incurred by the State in training officers and on no account constitutes a penalty.” 26. The plenary Court of Audit remitted the case to a different bench of the Fifth Division. The only question referred was that of the reassessment of the fee by counting the applicant’s five years of specialist training as part of his overall length of service. 27. In judgment no. 4909/2013 of 12 December 2013 (served on the applicant on 10 January 2014), the Fifth Division of the Court of Audit varied the decision of 26 May 2007 issued by the accounts department of the Army General Staff by reducing the amount payable by the applicant to EUR 49,978.33. 28. In particular, the Court of Audit held, firstly, that the decision of 26 May 2007 was lawful in that the applicant had left the army before completion of the period of eighteen years’ compulsory service. However, it found that the length of his remaining period of compulsory service was not nine years, four months and twelve days, as the Army General Staff had calculated, but four years, four months and ten days. It pointed out that the period already served by the applicant should have included his specialist training, which had begun on 26 July 1996 and ended on 27 July 2001, since, as judgment no. 3230/2011 had made clear, the period of specialist training was to be counted as part of the actual service performed. 29. On 13 March 2014 the State reimbursed the applicant the sum of EUR 59,749.61, corresponding to the difference between the payment he had already made and the amount determined in judgment no. 4909/2013. 30. According to information supplied by the Government, the applicant is now working in a large private hospital in Thessaloniki. ... | This case concerned an army officer who had been forced to pay a fee to the State in order to resign before the end of his period of service. This was the first time that the Court ruled on this matter. |
426 | Challenging the lawfulness of detention | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant, who is of Kurdish origin, was born in 1969 in north ‑ west Syria and lives in Nicosia. A. The applicant ’ s asylum claim and all relevant proceedings 10. The applicant left Syria on 21 May 2005 and, after travelling to Turkey and then to the “Turkish Republic of Northern Cyprus” (“TRNC”), he entered Cyprus unlawfully. 11. He applied for asylum on 12 September 2005 and an interview was held on 21 June 2006 with the Asylum Service. 12. His application was dismissed by the Asylum Service on 21 July 2006 on the ground that the applicant did not fulfil the requirements of the Refugee Law of 2000-2005 [1], namely, he had not shown a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular group or political opinion or a well-founded fear of serious and unjustified harm for other reasons. The Asylum Service noted that there had been discrepancies in his account of the facts which undermined his credibility. In particular, there had been significant contradictions regarding his origins. It was also observed that the applicant had not been able to reply satisfactorily and with precision to certain questions or to give the information required in a persuasive manner. In conclusion, the Asylum Service found that the asylum application had not been substantiated. 13. On 1 August 2006 the applicant lodged an appeal with the Reviewing Authority for Refugees (hereafter “the Reviewing Authority”) against the Asylum Service ’ s decision. The appeal was dismissed on 1 February 2008. 14. The Reviewing Authority upheld the decision of the Asylum Service. In its decision it observed that the applicant ’ s claims had not been credible and had been vague and unsubstantiated. The Reviewing Authority noted, inter alia, that although the applicant had stated in his interview with the Asylum Service that he had been arrested and detained for three days by the Syrian military security forces, that had been in 1992, thirteen years before he decided to leave the country. With the exception of this incident, he had confirmed that he had never been harassed by the Syrian authorities and had never been persecuted. Moreover, although the applicant claimed that he had stated in his interview with the Asylum Service that he had been subjected to electric shock treatment and the “wheel treatment” whilst in detention in Syria, it transpired from the minutes of that interview that he had in fact stated that the electric cables had not functioned and had not mentioned that the wheel had been used to torture him. The Asylum Service had therefore not considered it necessary to refer him for a medical examination. The Reviewing Authority also observed that the applicant had merely claimed that he had left Syria on account of the increased pressure on the Kurdish population in that country following the events in Qamishli in 2004 and his fear of being arrested in the future, and because of his political activities as a member of the Yekiti Party. His allegations, however, had been general and vague. Further, his written asylum application had been based on other grounds. In particular, in his application the applicant had stated that he had come to Cyprus in search of work and better living conditions. 15. Lastly, the Reviewing Authority pointed out that the applicant had been able to obtain a passport lawfully and to leave Syria. As regards the applicant ’ s claims concerning his involvement with the Yekiti Party in Syria, it pointed out that the applicant ’ s replies to questions put to him about the party were too general and vague. 16. In conclusion, the Reviewing Authority held that the applicant had not established that he was at risk of persecution and that if he returned to Syria his life would be in danger or he would be imprisoned. 17. On 1 September 2008, following a request by the Cyprus-Kurdish Friendship Association to the Minister of the Interior on 22 July 2008, the applicant ’ s file was reopened by the Asylum Service in order to examine new information put forward by the applicant, mainly concerning his activities as the head of the Yekiti Party in Cyprus. The applicant was again interviewed by the Asylum Service on 16 February 2009. 18. According to the Government, on 8 June 2010 an officer of the Asylum Service expressed the opinion that the information submitted by the applicant could not be considered as new evidence forming the basis of a new claim. The Government submitted an internal note to this effect. 19. The applicant was arrested on 11 June 2010 and deportation and detention orders were issued against him on the same day (see paragraph 41 below). 20. On 7 July 2010 the Asylum Service sent the applicant ’ s file to the Reviewing Authority following an opinion given by the Attorney-General that the relevant body which should examine the new evidence put forward by the applicant was the Reviewing Authority and not the Asylum Service. 21. On 20 August 2010 the Minister of the Interior cancelled the deportation and detention orders of 11 June 201 0 and issued new ones against the applicant on other grounds (see paragraph 4 8 below). 22. On 30 September 2010 the Reviewing Authority informed the applicant that the information submitted before it could not alter in any manner its initial decision not to recognise him as a refugee within the meaning of Articles 3 and 19 of the Refugee Law of 2000-2009 [2]. The applicant was served with the relevant letter on 6 October 2010. On the copy of the letter provided by the Government it is stated that the applicant was served with the letter on 6 October 2010 but refused to sign for it, requesting instead to see his lawyer. 23. On 8 October 2010 the applicant brought a “ recourse ” (judicial review proceedings) before the Supreme Court (first-instance revisional jurisdiction) under Article 146 of the Constitution challenging the decision of the Reviewing Authority of 30 September 2010. 24. Following advice from the Attorney-General, the Reviewing Authority decided to re-open the applicant ’ s file in order to consider the content of his second interview at the Asylum Service on 16 February 2009 (see paragraph 17 above). 25. The applicant was informed by letter dated 8 April 2011 that the Reviewing Authority had decided to withdraw its previous decision (see paragraph 22 above) and to reopen and re-examine his claim taking into consideration the content of his second interview with the Asylum Service. 26. The applicant was called on by the Reviewing Authority to give another interview as an examination of the minutes of the applicant ’ s interview at the Asylum Service showed that it had been inadequate. The applicant was interviewed by the Reviewing Authority on 26 April 2011. 27. On 29 April 2011 the Reviewing Authority decided to recognise the applicant as a refugee pursuant to the Refugee Law of 2000-2009 and the 1951 Geneva Convention relating to the Status of Refugees ( hereafter “the 1951 Geneva Convention”). The relevant excerpt of the decision reads as follows: “During the interview the applicant was asked about his activities in Cyprus and in particular about his membership of the Cypriot-Kurdish Friendship Association as well as his activities in the Yekiti opposition Party in Cyprus. From his interview it was ascertained that the applicant is credible in so far as his feelings for the rights of the Kurds in Syria are concerned. Consequently, the applicant started to get involved in political matters and to publicly express his opinion about the bad state of affairs in Syria. In particular, the applicant has an active role in the Yekiti Party in Cyprus as he is its founder and organises and coordinates his compatriots in anti-regime demonstrations and demonstrations for the rights of Kurds. Among the documents the applicant provided the Asylum Service with, there were photographs which show him organising, coordinating and leading the demonstrations that took place in the Republic of Cyprus. Consequently, his name has been connected with anti-regime demonstrations and with a negative stance towards the existing government of Syria. In addition, as an activist, the applicant is considered to be someone who causes problems for the Syrian authorities. Following his interview on 26 April 2011, the applicant provided the Reviewing Authority with additional documents. These are: 1) Documents from the Kurdish Organisation for Human Rights in Austria which refer to the activity of the applicant in Cyprus and to photographs of him which were published in Cypriot newspapers and which have come to the attention of the Syrian authorities. 2) The organigram of the Yekiti Party in Cyprus, which shows that the applicant is the head of the party. Lastly, following an inquiry, it was ascertained that the applicant had spoken about the problems faced by Kurds in the Republic and in Syria to local newspapers with pan -Cyprian circulation. More specifically, speaking as the representative of the Kurdish Yekiti Party in Cyprus the applicant had stated that Kurds did not have rights in Syria, as one of these rights was to speak one ’ s own language, something which is prohibited [for Kurds] in Syria. In addition, the applicant expressed fears that upon his return he would be arrested as [the authorities] knew him. The applicant has proved in a convincing manner that his fear of persecution and danger to his life in the event of his return to Syria is objectively credible. He is already stigmatised by the authorities of his country and according to the COI (country of origin information) a well-founded fear of persecution by the authorities in his country because of his political opposition activity has been substantiated. Upon examination it was ascertained that none of the exclusion clauses apply to the applicant ’ s case and, as a result, he should be granted refugee status as provided for in Article 3 of the Refugee Law. In view of all the above, it is evident that the real circumstances of the present application, [fulfil] the necessary conditions for the granting of refugee status provided for in section 3 of the Refugee Law 2000-2009 and the 1951 Geneva Convention. The applicant has succeeded in showing a well-founded fear of persecution on the basis of political opinions and should therefore be granted refugee status. On the basis of the above, it is decided that [the applicant] be granted refugee status.” 28. Following the above decision, on 6 June 2011 the applicant withdrew his recourse with the Supreme Court (see paragraph 23 above). B. The applicant ’ s arrest and detention with a view to deportation 29. On 17 May 2010 the Yekiti Party and other Kurds from Syria organised a demonstration in Nicosia, near the Representation of the European Commission, the Ministry of Labour and Social Insurance and the Government Printing Office. They were protesting against the restrictive policies of the Cypriot Asylum Service in granting international protection. About 150 Kurds from Syria, including the applicant, remained in the area around the clock, having set up about eighty tents on the pavement. According to the Government, the encampment conditions were unsanitary and protesters were obstructing road and pedestrian traffic. The encampment had become a hazard to public health and created a public nuisance. The protesters performed their daily chores on the pavement, including cooking and washing in unsanitary conditions. The sewage pits had overflown, causing a nuisance and offensive odours. The public lavatories were dirty and the rubbish bins of the Government buildings were being used and, as a result, were continuously overflowing. Furthermore, the protesters were unlawfully obtaining electricity from the Printing Office. Members of the public who lived or worked in the area had complained to the authorities. The Government submitted that efforts had been made by the authorities to persuade the protesters to leave, but to no avail. As a result, the authorities had decided to take action to remove the protesters from the area. 30. On 28 May 2010 instructions were given by the Minister of the Interior to proceed with the deportation of Syrian-Kurdish failed asylum seekers in the normal way. 31. On 31 May 2010 the Minister requested the Chief of Police, among others, to take action in order to implement his instructions. Further, he endorsed suggestions made by the competent authorities that deportation and detention orders be issued against Syrian- Kurdish failed asylum seekers who had passports and did not have Ajanib or Maktoumeen status and that the police execute the orders starting with the ones issued against the leaders of the protesters. The police were also directed to take into account the policy guidelines and to use discreet methods of arrest. 32. According to the Government, letters were sent by the Civil Registry and Migration Department to a number of failed Syrian- Kurdish asylum - seekers informing them that they had to make arrangements to leave Cyprus in view of their asylum applications being turned down. The Government submitted copies of thirty such letters. In thirteen cases the letters were dated 1 June 2010 (in some the asylum decisions having been taken as far back as 2007) and in one case 9 June 2010 (the asylum decision procedure having been completed at the end of 2009). Two other letters were dated 16 June 2010 (the asylum procedures having been completed in early 2008) and 28 June 2010 (the asylum procedures having been completed in March 2010). Further, one letter was dated 5 February 2011 in a case where the asylum procedure had been completed on 22 April 2010 and the person in question had voluntarily agreed and did return to Syria on 24 September 2010. 33. From documents submitted by the Government it appears that from 31 May until 7 June 2010 the authorities kept the area under surveillance and kept a record of the protesters ’ daily activities and of all comings and goings. In the relevant records it is noted that invariably, between 1.30 a.m. and 5. 30 a.m., things were, in general, quiet, and everyone was sleeping apart from those keeping guard. During the above-mentioned period a large-scale operation was organised by the Police Emergency Response Unit, “ERU” (“ ΜΜΑΔ ”), and a number of other authorities, including the Police Aliens and Immigration Unit, for the removal of the protesters and their transfer to the ERU headquarters for the purpose of ascertaining their status on a case-by-case basis. 34. In the meantime, between 28 May 2010 and 2 June 2010 orders for the detention and deportation of forty-five failed asylum seekers were issued following background checks. Letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, containing a short paragraph with information as to the immigration status of each person. This information included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service, the date of dismissal of the appeal by the Reviewing Authority, where lodged, and the date some of those concerned had been included on the authorities ’ “stop list” (a register of individuals whose entry into and exit from Cyprus is banned or subject to monitoring). The letters recommended the issuance of deportation and detention orders. The Government submitted copies of two such letters with information concerning thirteen people. 35. On 2 June 2010, letters were also prepared in English by the Civil Registry and Migration Department informing those concerned of the decision to detain and deport them. The Government submitted that, at the time, the authorities did not know whether those individuals were among the protesters. 36. The removal operation was carried out on 11 June 2010, between approximately 3 a.m. and 5 a.m. with the participation of about 250 officers from the Police Aliens and Immigration Unit, the ERU, the Nicosia District Police Division, the Traffic Division, the Fire Service and the Office for Combating Discrimination of the Cyprus Police Headquarters. The protesters, including the applicant, were led to buses, apparently without any reaction or resistance on their part. At 3.22 a.m. the mini buses carrying the male protesters left. The women, children and babies followed at 3.35 a.m. A total of 149 people were located at the place of protest and were transferred to the ERU headquarters: eighty-seven men, twenty-two women and forty children. Upon arrival, registration took place and the status of each person was examined using computers which had been specially installed the day before. The Government submitted that during this period the protesters had not been handcuffed or put in cells but had been assembled in rooms and given food and drink. It appears from the documents submitted by the Government that by 6.40 a.m. the identification of approximately half of the group had been completed and that the whole operation had ended by 4.30 p.m. 37. It was ascertained that seventy-six of the adults, along with their thirty children, were in the Republic unlawfully. Their asylum applications had either been dismissed or their files closed for failure to attend interviews. Those who had appealed to the Reviewing Authority had had their appeals dismissed. Some final decisions dated back to 2006. A number of people had also been included on the authorities ’ “ stop list ”. Deportation orders had already been issued for twenty-three of them (see paragraph 34 above). 38. The authorities deported twenty-two people on the same day at around 6.30 p.m. (nineteen adults and three children ). Forty-four people (forty-two men and two women), including the applicant, were charged with the criminal offence of unlawful stay in the Republic under section 19(2) of the Aliens and Immigration Law (see paragraph 6 5 below). They were arrested and transferred to various detention centres in Cyprus. The applicant was placed in the immigration detention facilities in the Nicosia Central Prisons ( Block 10). All those who were found to be legally resident in the Republic returned to their homes. Further, on humanitarian grounds, thirteen women whose husbands were detained pending deportation and who had a total of twenty-seven children between them were not arrested themselves. 39. According to the Government the applicant and his co-detainees were informed orally that they had been arrested and detained on the basis that they had been staying in the Republic unlawfully and were thus “ prohibited immigrants” (see § 62 below). They were also informed of their rights pursuant to the Rights of Persons Arrested and Detained Law 2005 (Law no. 163(I)/of 2005) (see paragraph 9 3 below) and, in particular, of their right to contact by phone, in person and in private, a lawyer of their own choice. The applicant submitted that he had not been informed of the reasons for his arrest and detention on that date. 40. On the same day letters were sent by the District Aliens and Immigration Branch of the Nicosia Police to the Director of the Aliens and Immigration Service and the Ministry of Justice and Public Order, recommending the issuance of deportation and detention orders. The letters contained a short paragraph in respect of each person with information as to his or her immigration status. This included the date of rejection of the asylum application or the closure of the asylum file by the Asylum Service and the date of dismissal of the appeal by the Reviewing Authority where lodged. Some letters also referred to the date the asylum application had been lodged and the date some of the individuals concerned had been included on the authorities ’ “ stop list ”. The Government submitted copies of letters concerning thirty-seven people [3]. 41. Deportation and detention orders were also issued in Greek on the same day in respect of the remaining fifty-three people detained (see paragraph 37 above), including the applicant, pursuant to section 14 (6) of the Aliens and Immigration Law on the ground that they were “ prohibited immigrants ” within the meaning of section 6(1)( k ) of that Law. These were couched in identical terms. In respect of two people the orders also mentioned sections 6(1)(i) and 6 (1)(l) of the Law. 42. Subsequently, on the same date, letters were prepared in English by the Civil Registry and Migration Department informing all the detainees individually, including the applicant, of the decision to detain and deport them. The Government submitted thirty-seven copies of these letters. The text of the letter addressed to the applicant reads as follows: “You are hereby informed that you are an illegal immigrant by virtue of paragraph (k). section 1, Article 6 of the Aliens and Immigration law, Chapter 105, as amended until 2009, because you of illegal entry [ sic ] Consequently your temporary residence permit/migration permit has been revoked and I have proceeded with the issue of deportation orders and detention orders dated 11th June 2010 against you. You have the right to be represented before me, or before any other Authority of the Republic and express possible objections against your deportation and seek the services of an interpreter.” 43. The text of the remaining copies of the letters submitted by the Government was virtually identical, a standard template having been used. The only differences were that some letters referred to illegal stay rather than illegal entry and that the letters issued earlier referred to 2 June 2010 as the date of issuance of the deportation and detention orders (see paragraph 34 above). 44. On the copy of the letter to the applicant provided by the Government, there is a handwritten signed note by a police officer stating that the letter was served on the applicant on 18 June 2010 but that he refused to receive and sign for it. The other letters had a similar note or stamp on them with the same date, stating that the person concerned had refused to sign for and/or receive the letter. In a letter dated 7 September 2010 the Government stated that the applicant had been served on 18 June 2010. In their subsequent observations the Government submitted, however, that this was the second attempt to serve the letters, the first attempt having been made on 11 June 2010, that is, the day of the arrest. 45. The applicant submitted that he had never refused to receive any kind of information in writing. He claimed that it had only been on 14 June 2010 that he had been informed orally that he would be deported to Syria on the same day but that the deportation and detention orders were not served on him on that date or subsequently. He submitted that he had eventually been informed by his lawyer, following the receipt of information submitted by the Government to the Court in the context of the application of Rule 39 of the Rules of Court, that deportation and detention orders had been issued against him on 11 June 2010. 46. From the documents submitted by the Government, it appears that at least another fourteen of the detainees were to be deported on 14 June 2010 [4]. 47. In a letter dated 12 October 2010 the Government informed the Court that on 17 August 2010 the Minister of the Interior had declared the applicant an illegal immigrant on public order grounds under section 6(1)(g) of the Aliens and Immigration Law on the basis of information that he had been involved in activities relating to receiving money from prospective Kurdish immigrants in exchange for “securing” residence and work permits in Cyprus. 48. On 20 August 2010 the Minister of Interior issued deportation and detention orders based on the above-mentioned provision. The previous orders of 11 June 2010 were cancelled. The applicant submitted that he had not been notified of the new orders. The Government did not comment on the matter and did not submit a copy of a letter notifying the applicant of these orders. 49. The applicant was released from detention on 3 May 2011 following the decision to grant him refugee status (see paragraph 27 above). C. Habeas corpus proceedings 50. On 24 January 2011 the applicant filed a habeas corpus application claiming that his continued detention from 11 June 2010 had violated Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Members states for returning illegally staying third- country nationals. The applicant, relying on the Court ’ s judgment in Chahal v. the United Kingdom, 15 November 1996, ( Reports of Judgments and Decisions 1996 ‑ V ) and the Commission ’ s report in Samie Ali v. Switzerland (no. 24881/94, Commission ’ s report of 26 February 1997) also claimed that his detention had breached Article 11 ( 2 ) of the Constitution and Article 5 § 1 of the Convention. 51. On 23 February 2011 the Supreme Court dismissed the application. With regard to the preliminary issues raised, the Supreme Court first of all held that it had the competence to examine the application as it was called upon to examine the lawfulness of the applicant ’ s protracted detention and not the lawfulness of the deportation and detention orders. The court could, within the context of a habeas corpus application, examine the conformity of the applicant ’ s detention with Article 15 (3) of the Directive and Article 11 (2) (f) of the Constitution. The applicant was not estopped from bringing a habeas corpus application due to the fact that he had not challenged the deportation and detention orders issued against him. Even if the lawfulness of the detention was assumed, detention for the purpose of deportation could not be indefinite and the detainee left without the right to seek his release. The Supreme Court also rejected the argument that the applicant was estopped from bringing the application because his continued detention had been brought about by his own actions, that is, by his application to the Strasbourg Court for an interim measure suspending his deportation. 52. The Supreme Court then examined the substance of the application. It noted that the Directive had direct effect in the domestic law, as the period for transposition had expired and the Directive had not been transposed. It could therefore be relied on in the proceedings. However, it went on to hold that the six- month period provided for in the Directive had not yet started to run. The applicant had been arrested on 11 June 2010 with a view to his deportation but had not been deported by the Government in view of the application by the Court on 12 June 2010 of Rule 39 and the issuing of an interim measure suspending his deportation. Consequently, the authorities had not been able to deport him. As the applicant himself had taken steps to suspend his deportation, the ensuing time could not be held against the Government and could not be taken into account for the purposes of Article 15 (5) and (6) of the Directive. The six-month period would start to run from the moment that the interim measure had been lifted. From that moment onwards the Government had been under an obligation in accordance with Article 15 (1) of the Directive to proceed with the applicant ’ s deportation with due diligence. The situation would have been different if the deportation had not been effected owing to delays attributable to the authorities. 53. In so far as the applicant ’ s complaints under Article 11 (2) of the Constitution and Article 5 § 1 of the Convention were concerned, the Supreme Court distinguished the applicant ’ s situation from those in the cases he relied on and in which responsibility for the protracted detention lay with the authorities. Further, it held that it had not been shown that the continued detention of the applicant had been arbitrary, abusive and contrary to the Court ’ s case- law (see paragraph 50 above). 54. The applicant lodged an appeal with the Supreme Court (appellate jurisdiction) on 17 March 2011. 55. The appeal was dismissed on 15 October 2012. The Supreme Court held that as the applicant had, in the meantime, been released, the application was without object. D. Background information concerning the applicant ’ s request under Rule 39 of the Rules of Court 56. On Saturday, 12 June 2010, the applicant, along with forty-three other persons of Kurdish origin, submitted a Rule 39 request [5] in order to prevent their imminent deportation to Syria. 57. On 14 June 2010 the President of the First Section decided to apply Rule 39, indicating to the respondent Government that the detainees should not be deported to Syria until the Court had had the opportunity to receive and examine all the documents pertaining to their claim. The parties were requested under Rule 54 § 2 (a) of the Rules of Court to submit information and documents concerning the asylum applications and the deportation. 58. On 21 September 2010 the President of the First Section reconsidered the application of Rule 39 in the light of information provided by the parties. He decided to maintain the interim measure in respect of five applications, including the present one. Rule 39 was lifted with regard to the thirty-nine remaining cases. In seven of these cases the deportation and detention orders were annulled by the authorities. It appears that in at least three out of the seven cases proceedings were still pending with the Asylum Service or the Reviewing Authority. Those applicants subsequently withdrew the applications they had lodged with the Court. 59. By a letter dated 11 May 2011, the applicant ’ s representative informed the Court that the applicant, by a decision dated 26 April 201 1, had been recognised as a refugee under the 1951 Geneva Convention and had been released on 3 May 2011. 60. On the basis of the above information, on 23 May 2011 the President of the First Section decided to lift the measure indicated under Rule 39. III. INTERNATIONAL TEXTS AND DOCUMENTS A. Relevant Council of Europe documents 1. Guidelines of the Committee of Ministers of the Council of Europe 94. Guideline X of the Guidelines on human rights protection in the context of accelerated asylum procedures adopted by the Committee of Ministers on 1 July 2009 at the 1062nd meeting of the Ministers ’ Deputies provides for the right to effective and suspensive remedies. It reads as follows: “ 1. Asylum seekers whose applications are rejected shall have the right to have the decision reviewed by a means constituting an effective remedy. 2. Where asylum seekers submit an arguable claim that the execution of a removal decision could lead to a real risk of persecution or the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision shall have suspensive effect.” 2. The Commissioner for Human Rights 95. The Commissioner for Human Rights issued a recommendation concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders (CommDH(2001)19). This recommendation of 19 September 2001 included the following paragraph: “11. It is essential that the right of judicial remedy within the meaning of Article 13 of the ECHR be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the ECHR. The right of effective remedy must be guaranteed to anyone wishing to challenge a refoulement or expulsion order. It must be capable of suspending enforcement of an expulsion order, at least where contravention of Articles 2 or 3 of the ECHR is alleged.” 3. ECRI reports on Cyprus 96. The European Commission against Racism and Intolerance (ECRI) published its third report on Cyprus on 16 December 2005. The relevant parts read as follows: “ 56. ECRI is also concerned that deportations of asylum seekers have sometimes been carried out in a way that jeopardises respect of the principle of non - refoulement. It has been reported to ECRI that deportations are effectively carried out before the individual has been given a chance to even formally apply for asylum. However, deportations have also been carried out after an asylum application has been filed and before the completion of its examination. This has reportedly included cases where the files were arbitrarily closed or the asylum seeker was forced to withdraw the application, but also cases where the asylum claim was still pending in the first or second instance. Furthermore, since filing an appeal for judicial review before the Supreme Court does not have a suspensive effect on the deportation order, deportations of asylum seekers who file such an appeal are reportedly carried out as a rule before its examination is completed. ... 61. ECRI urges the Cypriot authorities to ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected. In this respect, it recommends that the Cypriot authorities ensure that deportations are not carried out before asylum procedures at all instances are completed .” 97. In its subsequent periodic report (fourth monitoring cycle) on Cyprus, published on 31 May 2011, ECRI stated as follows: “ Asylum seekers and refugees 172. In its third report, ECRI made a large number of recommendations related to asylum seekers, namely that the authorities (i) ensure that adequate human and financial resources are available to deal effectively and within a reasonable time with all asylum applications; (ii) ensure that asylum seekers only be detained when it is absolutely necessary and that measures alternative to detention be used in all other cases; (iii) take urgent measures to ensure that the right of persons to apply for asylum is thoroughly respected; (iv) ensure that clear information on the rights of asylum seekers and the procedures to apply for asylum is available in a language that asylum seekers understand at police stations and at all places where they may apply for asylum; (v) increase training of the police in human rights, including asylum and non ‑ discrimination issues; (vi) ensure that any alleged instance of ill treatment of asylum seekers by police officers is thoroughly and rapidly investigated and that the persons found responsible are duly punished; (vii) take measures to improve asylum seekers ’ access to free or inexpensive legal aid and representation; (viii) take urgent measures to ensure that asylum seekers can access in practice all rights to which they are entitled by law, including in such areas as healthcare provision, welfare services, education and employment; (ix) ensure that asylum seekers are not discriminated against in exercising the right to employment granted to them by law, underlining that any measures taken by the Cypriot authorities with respect to asylum seekers ’ access to employment and welfare benefits should not push these persons towards illegality; (x) ensure that the asylum seekers ’ right to protection from refoulement is thoroughly respected and that deportations are not carried out before asylum procedures at all instances are completed; (xi) refrain from adopting deterrent policies in the field of asylum and from presenting any asylum policies to the public as deterrent policies. 173. ECRI notes that relatively little has changed in respect of the numerous concerns raised in its third report. Some of the above issues have already been addressed in other parts of this report. Below are some additional observations relating to asylum seekers. ... 183. As for legal aid, this is not available in administrative proceedings. ECRI notes that the first two instances in the asylum procedure, before the Asylum Service and the Refugee Reviewing Authority, are both administrative proceedings. The authorities have stated that according to the Refugee Law, an applicant has the right to have a lawyer or legal advisor at his/her own cost during all stages of the asylum procedure and that asylum seekers have access to free legal aid through the programmes funded by the European Refugee Fund and the Republic of Cyprus. In reality, however, few asylum seekers have the financial resources to engage private lawyers and there are only two NGOs functioning in the country with an interest in assisting asylum seekers. ... 185. A person whose asylum application is rejected at second instance may appeal to the Supreme Court for judicial review. The recent Law 132(I)/2009 amended the Legal Aid Law of 2002, in accordance with the EU Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, to extend eligibility for free legal aid, including advice, help and representation, to asylum seekers and refugees in appeals before the Supreme Court. ECRI notes that applications for legal aid are subject to a means and merits test: asylum seekers must demonstrate that they lack sufficient financial resources and that the appeal is likely to succeed. 186. International and civil society organisations have reported major difficulties in the application of the new legislation. Firstly, no information has been provided to asylum seekers of the new legal aid possibility. Secondly, since most asylum seekers do not have sufficient command of the Greek language, it is almost impossible for them to formulate a successful legal aid application, particularly as regards the merits test. Thirdly, it is reported that as soon as a negative second instance decision is taken, a deportation order is faxed to the police and rejected asylum seekers are frequently arrested before they even receive the letter informing them of the negative decision of the Refugee Reviewing Authority or have a chance to appeal to the Supreme Court. Filing an appeal in any case does not have a suspensive effect on the deportation order. This raises questions concerning respect of the principle of non-refoulement. The authorities, however, have assured ECRI that the Asylum Service takes all necessary measures to ensure that the principle of non-refoulement is fully respected and that no deportation takes place before the examination of an asylum case is completed. Lastly, if legal aid is granted there is no list of lawyers specialising in asylum for asylum seekers to choose from. 187. ECRI understands that only two asylum seekers have been granted legal aid since the adoption of the amendment in December 2009 and around 100 have represented themselves before the Supreme Court without legal aid. Moreover, very few decisions have been made by the Supreme Court to send a case back to the Refugee Reviewing Authority. 188. ECRI recommends that the authorities ensure that asylum seekers have access to appropriate legal aid throughout the asylum application procedure and not just at the appeal stage. 189. ECRI recommends that the authorities ensure that asylum seekers are fully aware of the availability of legal aid to challenge negative asylum decisions before the Supreme Court. 195. As administrative decisions, detention and deportation can be appealed at the Supreme Court. However, as observed in ECRI ’ s third report, an appeal has no suspensive effect, unless an interim injunction is granted by the Supreme Court. ” B. Relevant European Union Law 98. Article 15 of Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals stipulates that: “ 1. Unless other sufficient but less coercive measures can be applied effectively in a specific case, Member States may only keep in detention a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence 2. Detention shall be ordered by administrative or judicial authorities. Detention shall be ordered in writing with reasons being given in fact and in law. When detention has been ordered by administrative authorities, Member States shall: (a) either provide for a speedy judicial review of the lawfulness of detention to be decided on as speedily as possible from the beginning of detention; (b) or grant the third-country national concerned the right to take proceedings by means of which the lawfulness of detention shall be subject to a speedy judicial review to be decided on as speedily as possible after the launch of the relevant proceedings. In such a case Member States shall immediately inform the third-country national concerned about the possibility of taking such proceedings.” The third-country national concerned shall be released immediately if the detention is not lawful. 3. In every case, detention shall be reviewed at reasonable intervals of time either on application by the third-country national concerned or ex officio. In the case of prolonged detention periods, reviews shall be subject to the supervision of a judicial authority. 4. When it appears that a reasonable prospect of removal no longer exists for legal or other considerations or the conditions laid down in paragraph 1 no longer exist, detention ceases to be justified and the person concerned shall be released immediately. 5. Detention shall be maintained for as long a period as the conditions laid down in paragraph 1 are fulfilled and it is necessary to ensure successful removal. Each Member State shall set a limited period of detention, which may not exceed six months. 6. Member States may not extend the period referred to in paragraph 5 except for a limited period not exceeding a further twelve months in accordance with national law in cases where regardless of all their reasonable efforts the removal operation is likely to last longer owing to: (a) a lack of cooperation by the third-country national concerned, or (b) delays in obtaining the necessary documentation from third countries. ” 99. Article 18 (2) of Council Directive 200 5 / 85 /EC of 1 December 200 5 on minimum standards on procedures in Member States for granting and withdrawing refugee status provides that where an applicant for asylum is held in detention, Member States shall ensure that there is a possibility of speedy judicial review. C. Amnesty International reports 1. Report concerning the detention of migrants and asylum-seekers in Cyprus 100. In June 2012 Amnesty International published a report on the detention of migrants and asylum-seekers in Cyprus entitled “Punishment without a crime”. 101. In the report Amnesty International, noted, inter alia, that it had been made aware of asylum-seekers whose claims had been rejected at the initial stage and at appeal level, and who had subsequently been apprehended and kept in detention pending deportation even though they were awaiting a decision by the Supreme Court on their challenges against the rejection of their asylum applications. This was because although an application to the Supreme Court did not automatically suspend the deportation process, an application to suspend the deportation, including as an interim measure, had to be lodged with the Supreme Court. The suspension was not granted automatically; an applicant had to establish flagrant illegality or irreparable damage. This therefore meant that in Cyprus asylum-seekers might be at risk of forcible return to a place where they were at serious risk of human rights violations (breaching the principle of non-refoulement ) before their claim was finally determined unless the Supreme Court agreed to suspend the deportation order or, in cases where the asylum -seekers had petitioned the Court, an interim measure had been granted. 102. As regards the safeguards against unlawful detention, Amnesty International pointed out that it had documented several cases attesting to a failure by the police authorities to explain to immigration detainees the reasons for their detention, its possible length and the rights they had whilst in detention. Detainees and their lawyers had told Amnesty International that often they were not provided with the reasons and justification for detention. Usually, detainees were given a short letter simply referring to the legislative provisions under which their detention had been ordered and to the fact that they were being detained pending deportation. In some cases, deportation and detention orders had been handed to the individuals concerned several months into their detention. The report noted that such shortcomings were particularly common in relation to detained asylum-seekers. A large number interviewed by Amnesty International, particularly those whose applications were pending, did not appear to know how long they would be detained, even when they were aware of the grounds for their detention. 103. Furthermore, referring to the remedies available in Cyprus against detention, the report observed that according to lawyers, the average length of a recourse under Article 146 of the Constitution was one and a half years, whereas in a habeas corpus application it was one or two months. In the case of an appeal against an unsuccessful application, the length of the appeal proceedings in both cases was about five years on average. In addition, according to domestic legislation, the Minister of Interior reviewed immigration detention orders either on his or her own initiative every two months, or at a reasonable time following an application by the detainee. The Minister was also solely responsible for any decision to prolong detention for an additional maximum period of twelve months. However, the lack of automatic judicial review of the decision to detain was a cause of major concern. Referring to Article 5 § 4 of the Convention, Article 18 (2) of the Asylum Procedures Directive and Article 15 (2) of the EU Returns Directive the report concluded that because of the lack of an automatic judicial review of the administrative orders to detain, especially in cases of prolonged detention, it was clear that the procedural safeguards in Cypriot law fell short of international and regional standards. 104. The report concluded that the routine detention of irregular migrants and of a large number of asylum-seekers was in clear violation of Cyprus ’ human rights obligations. It considered that this pattern of abuse was partly due to inadequate legislation, but more often it was down to the practice of the authorities. Lastly, the report set out a number of recommendations to the Cypriot authorities. These include, in so far as relevant: - Ending the detention of asylum-seekers for immigration purposes in law and in practice, in line with international human rights standards which require that such detention is only used in exceptional circumstances; - Ensuring that the recourse to the Supreme Court regarding a decision rejecting an asylum application at the initial stage or at appeal level automatically suspends the implementation of a deportation order; - Ensuring that the decision to detain is automatically reviewed by a judicial body periodically on the basis of clear legislative criteria; - Ensuring that migrants and asylum-seekers deprived of their liberty are promptly informed in a language they understand, in writing, of the reasons for their detention, of the available appeal mechanisms and of the regulations of the detention facility. The decision to detain must entail reasoned grounds with reference to law and fact; - Ensuring that detention was always for the shortest possible time; - Ensuring that the maximum duration for detention provided in law is reasonable; - Ensuring that migrants and asylum-seekers were granted effective access to remedies against administrative deportation and detention orders, including through the assistance of free legal aid to challenge detention and/or deportation and adequate interpretation where necessary; - Ensuring that deportation procedures contain adequate procedural safeguards, including the ability to challenge individually the decision to deport, access to competent interpretation services and legal counsel, and access to appeal before a judge. 2. Annual report of 2011 105. The chapter on Cyprus in the Amnesty International 2011 annual report refers, inter alia, to the events of June 2010. In so far as relevant, it states as follows: “ In late May, around 250 Syrian Kurd protesters camped outside the “EU House” in Nicosia to protest against the authorities ’ rejection of their asylum claims and to protest about residence rights. On 11 June, 143 of the protesters, including children, were reportedly arrested during an early morning police operation. Several of them were released immediately but, according to reports, 23 were forcibly removed to Syria that day. On 14 June, the European Court of Human Rights issued interim measures requesting that Cyprus suspend the removal of the 44 who were still in detention. Seven of these were then released, either because they had pending asylum applications or were stateless. According to reports, of those remaining, 32 were forcibly removed to Syria after the European Court lifted the interim measures in their cases in September. The remaining five continued to be detained in Cyprus. Seventeen of those forcibly removed were reportedly arrested and detained upon or after their arrival in Syria.” | This case concerned a Syrian Kurd’s detention by Cypriot authorities and his intended deportation to Syria after an early morning police operation on 11 June 2010 removing him and other Kurds from Syria from an encampment outside government buildings in Nicosia in protest against the Cypriot Government’s asylum policy. |
240 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 5. A list of the applicant parties is appended. A. The context of the case 6. At the relevant time Mr Gianluigi Gabetti was the chairman of the two applicant companies and Mr Virgilio Marrone was the authorised representative ( procuratore ) of the applicant company Giovanni Agnelli & C. s.a.a. 7. On 26 July 2002 the public limited company FIAT ( Fabbrica Italiana Automobili Torino ) signed a financing agreement ( prestito convertendo ) with eight banks. That contract was due to expire on 20 September 2005 and stipulated that, should FIAT fail to reimburse the loan, the banks could offset their claim by subscribing to an increase in the company ’ s capital. Thus, the banks would have obtained 28% of FIAT ’ s share capital, while the holdings of the public limited company IFIL Investments (which subsequently, on 20 February 2009, became Exor s.p.a ., the name by which it will be referred to hereafter) would have decreased from 30.06% to about 22%. 8. Mr Gabetti wished to obtain legal advice on the best way to ensure that Exor remained the controlling shareholder in FIAT, and to this end he contacted a lawyer specialising in company law, Mr Grande Stevens. He considered that one possibility would be to renegotiate an equity swap (that is, a contract allowing a share ’ s performance to be exchanged against an interest rate, without having to advance money), dated 26 April 2005 and based on approximately 90 million FIAT shares, concluded by Exor with an English merchant bank, Merrill Lynch International Ltd, which was due to expire on 26 December 2006. In Mr Grande Stevens ’ s opinion, this would be one way to prevent the launch of a takeover bid with regard to the FIAT shares. 9. Without mentioning Merrill Lynch International Ltd for fear of breaching his duty of confidentiality, on 12 August 2005 Mr Grande Stevens asked the National Companies and Stock Exchange Commission ( Commissione Nazionale per le Società e la Borsa – “the CONSOB”, which in the Italian legal system, has the task, inter alia, of protecting investors and ensuring the transparency and development of the stock markets) whether, in the scenario he envisaged, a takeover bid could be avoided. At the same time Mr Grande Stevens began making enquires with Merrill Lynch International Ltd about the possibility of amending the equity swap contract. 10. On 23 August 2005 the CONSOB asked Exor and Giovanni Agnelli to issue a press release providing information on any initiative taken in the light of the forthcoming expiry of the financing agreement with the banks, any new fact concerning FIAT and anything that might explain the market fluctuations in FIAT shares. 11. Mr Marrone alleges that he was on leave on that date. He had informed Mr Grande Stevens of the CONSOB ’ s request and had sent him a copy of it. Mr Marrone submits that he was not involved in drafting the press releases described in paragraphs 13 and 14 below. 12. Mr Gabetti submits that on 23 August 2005 he was in hospital in the United States. He had received a draft press release and had contacted Mr Grande Stevens by telephone; the lawyer had confirmed to him that, given the significant number of elements that remained uncertain, renegotiation of the equity swap contract could not be considered as a relevant and currently available option. In those circumstances, Mr Gabetti approved the draft press release. 13. The press release issued in response [to the CONSOB ’ s query], approved by Mr Grande Stevens, merely indicated that Exor had “neither instituted nor examined initiatives with regard to the expiry of the financing contract” and that it wished “to remain FIAT ’ s reference shareholder”. No mention was made of the possible renegotiation of the equity swap contract with Merrill Lynch International Ltd, which, in the absence of a clear factual and legal basis, the applicants considered merely as one possible future scenario. 14. The Giovanni Agnelli Company confirmed Exor ’ s press release. 15. From 30 August to 15 September 2005 Mr Grande Stevens continued his negotiations with Merrill Lynch International Ltd, exploring the options for amending the equity swap contract. 16. On 14 September 2005, in the course of an Agnelli family meeting, it was decided that the draft text being studied by Mr Grande Stevens ought to be submitted for approval by the Exor board of management. On the same day, the CONSOB received a copy of the equity swap contract and was informed of the negotiations under way with a view to using that contract to enable Exor to acquire FIAT shares. 17. On 15 September 2005, in execution of the decisions taken by their respective boards of management, Exor and Merrill Lynch International Ltd concluded the agreement on amending the equity swap contract. 18. On 17 September 2005, in response to the question posed to it by Mr Grande Stevens on 12 August 2005 (see paragraph 9 above), the CONSOB indicated that, in the scenario envisaged, there was no obligation to launch a takeover bid. 19. On 20 September 2005 FIAT increased its share capital; the new shares were acquired by the eight banks in compensation for the sums owed to them. On the same date the agreement amending the equity swap contract took effect. In consequence, Exor continued to hold a 30% stake in FIAT. B. The proceedings before the CONSOB 20. On 20 February 2006 the CONSOB ’ s Markets and Economic Opinions Division – Insider Trading Office ( Divisione mercati e consulenza economica – ufficio Insider Trading – hereafter the “IT Office”) accused the applicants of breaching Article 187 ter § 1 of Legislative Decree no. 58 of 24 February 1998. That article, entitled “Market Manipulation”, provides: “Without prejudice to criminal penalties where the conduct amounts to an offence, any person who, through means of information, including Internet or any other means, disseminates false or misleading information, news or rumours of a kind to provide false or misleading indications concerning financial instruments shall be liable to an administrative penalty ranging from 20,000 to 5,000,000 euros (EUR).” [1] 21. According to the IT Office, the agreement to amend the equity swap had been concluded or was in the process of being concluded before the press releases of 24 August 2005 were issued, and accordingly it was abnormal that they had contained no mention of it. The applicants were invited to submit their defence. 22. The IT Office then transmitted the file to the CONSOB ’ s Administrative Sanctions Directorate ( ufficio sanzioni amministrative – hereafter, “the Directorate”), accompanied by a report ( relazione istruttoria ) dated 13 September 2006, which set out the evidence against the accused and their arguments in reply. According to that report, the arguments submitted in their defence by the applicants were not such as to enable the file to be closed. 23. The Directorate communicated this report to the applicants and invited them to submit in writing, within a thirty-day period that would expire on 23 October 2006, those arguments that they considered necessary for their defence. In the meantime, the IT Office continued to examine the applicants ’ case, by obtaining oral statements and analysing the documents received on 7 July 2006 from Merrill Lynch International Ltd. On 19 October 2006 it transmitted a “supplementary note” to the Directorate in which it stated that the new documents examined by it were not such as to alter its conclusions. On 26 October 2006 the applicants received a copy of the supplementary note of 19 October 2006 and its appendices; they were given a further thirty-day deadline within which to submit any comments. 24. Without communicating it to the applicants, the Directorate presented its report (dated 19 January 2007 and containing its conclusions) to the Commission – the CONSOB proper –, that is, to the body responsible for deciding on possible penalties. At the relevant time the Commission was made up of a chairman and four members, appointed by the President of the Republic on a proposal ( su proposta ) from the President of the Council of Ministers. Their term of office was for five years and could be renewed only once. 25. By resolution no. 15760 of 9 February 2007, the CONSOB imposed the following administrative fines on the applicants: - EUR 5,000,000 in respect of Mr Gabetti, - EUR 3,000,000 in respect of Mr Grande Stevens, - EUR 500,000 in respect of Mr Marrone, - EUR 4,500,000 in respect of the company Exor, - EUR 3,000,000 in respect of the company Giovanni Agnelli. 26. Mr Gabetti, Mr Grande Stevens and Mr Marrone were banned from administering, managing or supervising listed companies for periods of six, four and two months respectively. 27. The CONSOB held, in particular, that the file showed that on 24 August 2005, date of the impugned press releases, the plans to maintain a 30% stake in FIAT ’ s capital on the basis of renegotiation of the equity swap contract with Merrill Lynch International Ltd had already been studied and were being put in place. It followed that the press releases falsely represented ( rappresentazione falsa ) the situation at the time. The CONSOB also emphasised the positions held by the persons concerned, the “objective gravity” of the offence and the existence of malicious intent. C. Application to the appeal court to have the penalties set aside 28. The applicants applied to the Turin Court of Appeal seeking to have these penalties set aside. They alleged, inter alia, that the CONSOB ’ s rules were illegal, since, contrary to the requirements of Article 187 septies of Legislative Decree no. 58 of 1998 (see paragraph 57 below), they did not comply with the principle of an adversarial examination of the case. 29. Mr Grande Stevens further noted that the CONSOB had accused and punished him for being involved in publication of the press release of 24 August 2005 as the executive director of Exor. Before the CONSOB, he had argued unsuccessfully that he did not have that role and that he was merely a lawyer and consultant for the Agnelli group. Before the appeal court, Mr Grande Stevens maintained that, since he was not an executive director, he could not have taken part in the decision to publish the impugned press release. In pleadings of 25 September 2007, Mr Grande Stevens requested that, should the appeal court consider the documents placed in the case file to be insufficient or unusable, it summon witnesses for questioning “on the facts set out in the above-mentioned documents”. He did not indicate clearly in those pleadings either the names of those witnesses or the circumstances in respect of which they were to give evidence. In pleadings of the same date, Mr Marrone named two witnesses whose statements would prove that he had not taken part in drafting the press releases, and stated that the appeal court could, if necessary ( ove occorresse ), question them. 30. In judgments deposited with the registry on 23 January 2008, the Turin Court of Appeal reduced the administrative fines imposed by the CONSOB in respect of certain of the applicants, as follows: - EUR 600,000 in respect of Giovanni Agnelli s.a.a .; - EUR 1,000,000 in respect of Exor s.p.a .; - EUR 1,200,000 in respect of Mr Gabetti. The heading of the judgments delivered in respect of Mr Gabetti, Mr Marrone and Exor S.p.a. indicated that the court of appeal had met in private ( riunita in camera di consiglio ). The “procedure” part of the judgments issued in respect of Mr Grande Stevens and Giovanni Agnelli & C. S.a.s. mentioned that the parties had been summoned to the deliberations ( disposta la comparizione delle parti in camera di consiglio ). 31. The length of the ban on assuming responsibility for the administration, management or supervision of companies listed on the stock exchange was reduced from six to four months in respect of Mr Gabetti. 32. The court of appeal dismissed the applicants ’ other complaints in their entirety. It noted, inter alia, that even after the file had been transmitted to the Directorate, the IT Office had been entitled to continue its investigative activities, as the 210-day deadline provided for the CONSOB ’ s deliberations had not been binding. Furthermore, the adversarial principle was complied with if, as in the present case, those charged had been informed of the new evidence obtained by the IT Office and had had an opportunity to submit their replies. 33. The court of appeal also noted that it was true that the CONSOB had both imposed the penalties provided for by Article 187 ter of Legislative Decree no. 58 of 1998 and reported the case to the prosecuting authorities, alleging that the criminal offence described in Article 185 § 1 of the same decree had been committed. Under the terms of this provision, “Anyone who disseminates false information, carries out simulated transactions or uses other ploys ( artifizi ) which are objectively capable of triggering a significant change in the value of financial instruments shall be punishable by between one and six years ’ imprisonment and a fine of 20,000 to 5,000,000 euros.” 34. According to the court of appeal, those two provisions had as their subject-matter the same conduct (the “dissemination of false information”) and pursued the same aim (to prevent market manipulation), but differed with regard to the situation of risk alleged to have been generated by this conduct: in respect of Article 187 ter, it was sufficient in itself to have given false or misleading indications concerning financial instruments, while Article 185 further required that that information had been such as to trigger a significant change in the price of the instruments in question. As the Constitutional Court had indicated in its order no. 409 of 12 November 1991, it was open to the legislature to punish illegal conduct both by a pecuniary administrative sanction and by criminal penalties. In addition, Article 14 of Directive 2003/6/EC (see paragraph 60 below), which invited the member States of the European Union to apply administrative sanctions against persons responsible for manipulating the market, contained in turn the phrase “without prejudice to the right of Member States to impose criminal sanctions”. 35. On the merits, the court of appeal observed that it was clear from the case file that the renegotiation of the equity swap had been examined in minute detail at the relevant date and that the conclusion reached by the CONSOB (namely, that this plan already existed one month prior to 24 August 2005) had been reasonable in the light of the established facts and the conduct of the persons concerned. 36. As to Mr Grande Stevens, it was true that he was not an executive director of Exor s.p.a. Nonetheless, the administrative offence punishable under Article 187 ter of Legislative Decree no. 58 of 1998 could be committed by “anyone”, and therefore by a person in any capacity whatsoever; Mr Grande Stevens had indeed participated in the decision-making process which had led to publication of the press release in his capacity as a lawyer consulted by the applicant companies. D. Appeal on points of law 37. The applicants appealed on points of law. In the third and fourth grounds of their points of appeal, they alleged, inter alia, that there had been a breach of the principles of a fair hearing, enshrined in Article 111 of the Constitution, because, in particular: the investigative phase of the CONSOB proceedings had not been adversarial in nature; there had been a failure to transmit the Directorate ’ s report to the accused; in the applicants ’ view, it had been impossible to file pleadings with or be heard in person by the Commission; the IT Office had continued its investigation and transmitted a supplementary note after expiry of the time-limit set for that purpose. 38. By judgments of 23 June 2009, the text of which was deposited with the registry on 30 September 2009, the Court of Cassation dismissed their appeals on points of law. It considered, in particular, that the principle of an adversarial examination of the case had been complied with in the proceedings before the CONSOB, noting that the latter had indicated to the applicants the acts with which they were charged and taken account of their respective defence submissions. The fact that the applicants had not been questioned and that they had not received the Directorate ’ s conclusions had not been in breach of that principle, since the constitutional provisions regarding a fair hearing and the right of defence were applicable only to judicial proceedings, and not to proceedings to impose administrative sanctions. E. The criminal proceedings against the applicants 39. Under Legislative Decree no. 58 of 1998, the applicants ’ impugned conduct could be the subject-matter not only of an administrative sanction, imposed by the CONSOB, but also of the criminal penalties provided for in Article 185 § 1, cited in paragraph 33 above. 40. On 7 November 2008 the applicants were committed for trial before the Turin District Court. They were accused of having stated, in the press releases of 24 August 2005, that Exor wished to remain FIAT ’ s reference shareholder and that it had neither initiated nor examined initiatives with regard to the expiry of the financing contract, although the agreement amending the equity swap had already been examined and concluded, information that had been withheld in order to avoid a probable fall in the FIAT share price. 41. CONSOB applied to be joined to the proceedings as a civil party, a possibility open to it under Article 187 undecies of Legislative Decree no. 58 of 1998. 42. After 30 September 2009, the date on which the judgment dismissing the applicants ’ appeal on points of law against the penalties imposed by the CONSOB was deposited with the registry (see paragraph 38 above), the applicants requested that the criminal proceedings against them be discontinued, by virtue of the non bis in idem rule. In particular, at the hearing of 7 January 2010, they argued that the relevant provisions of Legislative Decree no. 58 of 1998 and Article 649 of the Code of Criminal Procedure (“the CCP” - see paragraph 59 below) were unconstitutional, on account of their alleged incompatibility with Article 4 of Protocol No. 7. 43. The representative of the prosecuting authorities opposed this objection, alleging that “double proceedings” (administrative and criminal) were imposed by Article 14 of Directive 2003/6/EC of 28 January 2003 (see paragraph 60 below), which the Italian legislature had transposed by enacting Articles 185 and 187 ter of Legislative Decree no. 58 of 1998. 44. The Turin District Court did not immediately rule on the ancillary question of constitutionality raised by the defence. It ordered an expert report describing the fluctuations in FIAT shares between December 2004 and April 2005 and evaluating the effects of the press releases of 24 August 2005 and the information made public on 15 September 2005. 45. By a judgment of 21 December 2010, the text of which was deposited with the registry on 18 March 2011, the Turin District Court acquitted Mr Marrone on the ground that he had not been involved in the publication of the press releases, and also acquitted the other applicants on the ground that it had not been proven that their conduct had been such as to trigger a significant change in the financial markets. It noted that the fact that the press releases contained false information had already been punished by the administrative body. In the court ’ s view, the applicants ’ impugned conduct had, probably, been aimed at concealing the renegotiation of the equity swap contract from the CONSOB, and not at increasing FIAT ’ s share price. 46. The court held that the ancillary question of constitutionality raised by the applicants was manifestly ill-founded. It noted that Italian law (section 9 of Law no. 689 of 1981) prohibited “double proceedings” ( doppio giudizio ), criminal and administrative, in respect of the “same act”. However, Articles 185 and 187 ter of Legislative Decree no. 58 of 1998 did not punish the same act: only the criminal provision (Article 185) required that the conduct be such as to cause a significant change in the value of financial instruments (it referred to judgment no. 15199 of the Court of Cassation (Sixth Section), of 16 March 2006). In addition, application of the criminal provision required the existence of malicious intent, while the administrative provision was applicable as soon as culpable conduct was established. Moreover, the criminal proceedings which had followed the imposition of the financial penalty provided for by Article 187 ter of Legislative Decree no. 58 of 1998 were authorised by Article 14 of Directive 2003/6/EC. 47. As to the case-law of the Court cited by the applicants ( Gradinger v. Austria (23 October 1995, Series A no. 328-C), Sergey Zolotukhin v. Russia [GC], no. 14939/03, ECHR 2009 ), Maresti v. Croatia (no. 55759/07, 25 June 2009) and Ruotsalainen v. Finland (no. 13079/03, 16 June 2009)), it was not relevant to this case, since it concerned cases where a single act had been punished by criminal and administrative penalties and where the latter had a punitive element and could include a custodial sentence or (as in the Ruotsalainen case) were for a sum higher than the criminal fine. 48. The public prosecutor ’ s office appealed on points of law, alleging that the offence with which the applicants had been charged was one “of danger” ( reato di pericolo ) and not “of damage” ( reato di danno ). It could therefore be committed even in the absence of damage having been sustained by the shareholders. 49. On 20 June 2012 the Court of Cassation allowed in part the prosecuting authorities ’ appeal on points of law and quashed the acquittal of the companies Giovanni Agnelli and Exor, and those of Mr Grande Stevens and Mr Gabetti. However, it upheld the acquittal of Mr Marrone, given that he had not taken part in the impugned conduct. 50. By a judgment of 28 February 2013, the Turin Court of Appeal convicted Mr Gabetti and Mr Grande Stevens of the offence set out in Article 185 § 1 of Legislative Decree no. 58 of 1998, considering it highly probable that, had the false information included in the press release of 24 August 2005 not been issued, the value of FIAT ’ s shares would have fallen much more sharply. However, it acquitted the companies Exor and Giovanni Agnelli, holding that no criminal acts could be imputed to them. 51. The court of appeal held that there was no appearance of a violation of the ne bis in idem principle, thus endorsing the main thrust of the Turin District Court ’ s reasoning. 52. According to the information provided by the Government on 7 June 2013, Mr Gabetti and Mr Grande Stevens appealed on points of law against that judgment, and the proceedings were still pending at that date. In their appeals, these two applicants relied on a violation of the ne bis in idem principle and asked that an ancillary question of constitutionality be raised in respect of Article 649 of the Code of Criminal Procedure. ... | The applicants were two companies and their chairman, together with the authorised representative of one of the companies, and a lawyer who had advised them. The case concerned their appeal against the administrative penalty imposed on them by the Italian Companies and Stock Exchange Commission (“Consob4”) and the criminal proceedings to which they were subject after having been accused of market manipulation in the context of a financial operation involving the car manufacturer FIAT. The applicants complained, inter alia, that criminal proceedings had been brought against them in respect of events for which they had already received an administrative penalty. The Italian Government submitted that Italy had made a declaration to the effect that Articles 2 to 4 of Protocol No. 7 applied only to offences, proceedings and decisions classified as criminal under Italian law, which was not the case for the offences proscribed by Consob. |
41 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 9. The first applicant, María Iglesias Gil, was born in 1961 and lives in Vigo. She is the mother of the second applicant, A.U.I., who was born in 1995. 10. On 8 September 1989 the first applicant married A.U.A. On 3 June 1994 the couple divorced. Their son A.U.I. was born on 7 December 1995 and A.U.A. acknowledged paternity. In a decision of 20 December 1996, the Vigo Family Court awarded the first applicant custody of A.U.I., and the father access. On 1 February 1997 A.U.A. abducted his son during an access visit and left Spain with him. After passing through France and Belgium, he travelled with the child by air to the United States. A. Domestic court proceedings 1. The first applicant’s criminal complaint of unlawful abduction 11. The first applicant lodged a criminal complaint with Vigo investigating judge no. 5 alleging child abduction and applied to be joined to the proceedings as a civil party. On 4 February 1997 the investigating judge made orders for a nationwide search to be made for A.U.A. and for the child’s immediate return to its mother. Subsequently, the first applicant also made criminal complaints against various members of A.U.A.’s family who, she said, had assisted in her son’s abduction. 12. During the investigation, the first applicant requested Vigo investigating judge no. 5 to monitor calls on A.U.A.’s mobile telephone and to interview members of A.U.A.’s family. In a decision of 19 February 1997, the investigating judge turned down both requests, the former on the ground that there was no evidence that the mobile telephone number that had been given was A.U.A.’s and the latter because the first applicant had not given precise details of the questions she wished to be put to her former husband’s relatives. The first applicant also asked the investigating judge for a search to be carried out at the registered office of a company belonging to A.U.A. that was responsible for administering his property in his absence, and for the examination of a vehicle he had used to leave Spain. The judge again refused. 13. The first applicant asked the judge to issue an international search and arrest warrant against A.U.A., but in an order of 29 May 1997, he declined, stating: “... 2. As regards the international search and arrest warrant, the offences of coercion and extortion have not been made out. It is debatable whether there has been an offence of criminal contempt, since it has not been proved that the person concerned was ordered to comply with the judgment of the family court and warned that he was liable to commit this offence. In addition, since this offence (Article 556 of the Criminal Code) only carries a prison sentence of between six months and one year, an international search and arrest warrant is not justified, [especially] as the conduct complained of appears to come within Article 622 of the Criminal Code, which characterises it as a minor offence. ... 4. Furthermore, it should be noted that the requested procedural steps are neither lawful, nor adapted to the aim pursued, and must therefore be refused pursuant to Article 311 of the Code of Criminal Procedure.” 14. In a decision of 5 June 1997, investigating judge no. 5 turned down further requests by the first applicant for investigative steps to be taken as a result of her former husband’s contempt and failure to comply with the judgment of the family court on the following grounds: “... 2. Investigative steps are taken in order to establish whether an offence has been committed. The investigation is brought to an end by a judicial decision, not at the request of a party (Article 785 Code of Criminal Procedure). 3. The inquiries made to date do not prove that A.U.A. failed to return his son to his mother at the end of the period for which he was entitled to have him to stay. ... 6. A wanted notice has been issued for A.U.A. nationally. As soon as he has been traced, final provision 19 of Institutional Law no. 1/1996 of 15 January 1996 on the legal protection of minors can be applied.” 15. In an order of 25 May 1998, the investigating judge also examined whether a person could be prosecuted for the abduction of a minor for whom he had joint parental responsibility. He found that this was not possible under the case-law, as the only offences that could be committed in such circumstances were criminal contempt and extortion. In a further order dated 1 July 1998 the investigating judge reiterated that no international search and arrest warrant could be issued for the suspected offence of criminal contempt, for the following reasons: “... As regards an international search and arrest warrant against A.U.A., this issue was resolved by the Pontevedra Audiencia in its decision of 23 September 1997. No new facts have emerged since then that would justify reclassifying the offence. Under no circumstances can it amount to ‘false imprisonment’, as the judgment of 5 July 1993 on the abduction of minors makes clear. In that judgment, the court held: ‘The fact that a father has taken his minor child with him solely in order to enjoy its company cannot amount to the offence of child abduction’ ... Lastly, as to the suspected offence of criminal contempt, no international search and arrest warrant can be issued as it is not an offence that comes within the extradition treaties. Consequently, Interpol would not act on such a warrant, as it would not be valid in law.” 16. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 17 November 1998. 2. The first applicant’s first amparo appeal 17. The first applicant sought amparo relief under Articles 24 (right to a fair hearing), 15 (right to life and mental and physical integrity) and 17 (right to liberty and security) of the Constitution, and the United Nations Convention on the Rights of the Child of 1989. In a decision of 2 June 1999, the Constitutional Court dismissed her appeal as manifestly ill-founded, holding that she had not stated why she disagreed with the reasoned decisions of the lower courts. 3. Provisional discharge order by investigating judge no. 5 18. At the end of the investigation, on 3 July 1998, Vigo investigating judge no. 5 issued a provisional discharge order dismissing the charges against A.U.A. However, he renewed the orders for a nationwide search for A.U.A. and the order freezing his assets. He also made a final order dismissing the charges against the members of A.U.A.’s family who had been implicated by the first applicant. The reason given by the judge for making the provisional discharge order in respect of A.U.A. was that the latter’s absence from Spain had prevented his being questioned or formally charged in accordance with Article 791 § 4 of the Code of Criminal Procedure. An appeal by the first applicant was dismissed by the Pontevedra Audiencia Provincial on 9 November 1998. 4. The first applicant’s second amparo appeal 19. The first applicant lodged an amparo appeal against those decisions with the Constitutional Court, in which she alleged violations of Article 17 (right to liberty and security), taken together with Articles 18 (rights to private life and family privacy), 24 (right to a fair hearing) and 39 (social, economic and legal protection of the family and children) of the Constitution. She also relied on Articles 5 and 8 of the Convention. In her appeal, she complained in particular of the investigating judge’s systematic refusal to issue an international search warrant for her child, a refusal which, she said, was in breach of the positive duty to protect children and families. She also alleged a violation of Article 11 § 1 of the Convention on the Rights of the Child of 1989, which requires States to take measures to combat the illicit transfer and non-return of children abroad. In her submission, by refusing to take any investigative steps, the investigating judge had directly infringed both her and her son’s right to private and family life, and her right to judicial protection, as guaranteed by Article 24 the Constitution and Article 6 of the Convention. 20. In a decision of 17 June 1999, the Constitutional Court dismissed the amparo appeal as unfounded, holding that the first applicant had confined herself to contesting the decisions of the criminal courts which, in reasoned and well-founded decisions, had decided to make a provisional discharge order in respect of her criminal complaint of child abduction, while renewing certain preventive measures. 5. Other decisions in the criminal proceedings 21. In connection with an appeal by the first applicant to the Pontevedra Audiencia Provincial against one of his decisions, investigating judge no. 5 said in a report to the Audiencia Provincial on 5 September 1997: “... The purpose of criminal proceedings is to prosecute the offence and, if appropriate, to punish the perpetrators. However, an investigating judge cannot, under any circumstances, allow himself to be manipulated by a woman driven by jealousy or hatred against her former husband’s family and take a series of procedural measures that serve no purpose other than to inconvenience third parties uninvolved in the proceedings. In the present case, all that has been proved so far is that A.U.A. did not return his son A.U.I. to his mother at the end of the period he was allowed by the family court.” 22. An application for an order requiring investigating judge no. 5 to stand down was dismissed in a decision of 20 November 1997. In a decision of 22 February 1999, an application for the proceedings to be declared null and void was likewise dismissed. 6. Award of full parental responsibility to the first applicant 23. In a judgment of 12 February 1999, the Vigo Family Court withdrew parental responsibility from A.U.A. and awarded the first applicant full parental responsibility. It gave the following reasons for its decision: “... Having considered the evidence, the Court has decided to grant the applicant’s application. ... the case file shows that, after continually failing to comply with the access arrangements (see this Court’s decision of 20 December 1996), the respondent did not return the child to its mother at the end of the period stipulated in the decision of 20 December 1996. Furthermore, since 1 February 1997, the whereabouts of both father and child have been unknown, which means that the child has been removed from the applicant’s custody in breach of a court order. Such conduct can only be described as very serious, as it has entailed the cruel and abrupt removal of the child from the family background in which it was being happily brought up, thereby depriving it both now and then of its mother’s love and protection ... at the most tender of ages, with the serious harm which that entails ... Thus, by putting his own interests before those of his child, [A.U.A.] has acted in a manner that is seriously detrimental to the child’s welfare ...” 7. Renewal of contact between the first applicant and her son, the return of the child and further criminal complaints 24. According to a psychologist’s report produced by the first applicant in April 2000, A.U.A. first made contact with her through a telephone call in which he imposed various conditions for the child’s return, threatened her and used the prospect of her not seeing her son again as blackmail. On 12 June 2000 the first applicant lodged a criminal complaint against A.U.A. alleging threatening behaviour and coercion. On 30 September 2000 Vigo investigating judge no. 6 made a provisional discharge order. On an appeal by the first applicant, that order was quashed by the Pontevedra Audiencia Provincial in a decision of 15 May 2001. 25. On 18 April 2000 the first applicant saw her son for the first time since his abduction in February 1997. On 12 May 2000 A.U.A. voluntarily appeared before the investigating judge, who, after hearing his representations, decided not to order his detention pending trial. Finally, on 18 June 2000 the first applicant was able to recover her child with police assistance on A.U.A.’s return to Vigo with the child. She said that for a time she was forced to go into hiding with her son in a shelter for women. 26. On 14 July 2000 the Family Court granted A.U.A. access. As he was prevented from exercising that right, A.U.A. lodged a criminal complaint with the Vigo investigating judge against the first applicant and her parents alleging aggravated contempt. | The applicant alleged that the Spanish authorities had not taken appropriate measures to ensure the prompt enforcement of judicial decisions awarding her custody and exclusive parental authority in respect of her child – who had been taken to the United States of America with her father. She complained in particular that the authorities had lacked diligence in dealing with her abduction complaint. |
1,063 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant, OAO Neftyanaya Kompaniya YUKOS, was a publicly-traded private open joint-stock company incorporated under the laws of Russia. It was registered in Nefteyugansk, the Khanty-Mansi Autonomous Region, and at the relevant time was managed by its subsidiary, OOO “YUKOS” Moskva, registered in Moscow. 7. The applicant was a holding company established by the Russian Government in 1993 to own and control a number of stand-alone entities specialised in oil production. The company remained fully State-owned until 1995-1996 when, through a series of tenders and auctions, it was privatised. A. Proceedings in respect of the applicant company’s tax liability for the year 2000 1. Tax assessment 2000 (a) Original tax inspection 8. Between 13 November 2002 and 4 March 2003 the Tax Inspectorate of the town of Nefteyugansk (“the Tax Office”) conducted a tax inspection of the applicant company. 9. As a result of the inspection, on 28 April 2003 the Tax Office drew up a report indicating a number of relatively minor errors in the company’s tax returns and served it on the company. 10. Following the company’s objections, on 9 June 2003 the Tax Office adopted a decision in which it found the company liable for having filed incomplete returns in respect of certain taxes. 11. The decision of the Tax Office was accepted and complied with by the company on 7 July 2003. (b) Additional tax inspection 12. On 8 December 2003 the Tax Ministry (“the Ministry”), acting as a reviewing body within the meaning of section 87 (3) of the Tax Code, carried out an additional tax inspection of the applicant company. 13. On 29 December 2003 the Ministry issued a report indicating that the applicant company had a large tax liability for the year 2000. The detailed report came to over 70 pages and had 284 supporting documents in annex. The report was served on the applicant company on the same date. 14. The Ministry established that in 2000 the applicant company had carried out its activities through a network of 22 trading companies registered in low-tax areas of Russia (“the Republic of Mordoviya, the town of Sarov in the Nizhniy Novgorod Region, the Republic of Kalmykiya, the town of Trekhgornyy in the Chelyabinsk Region, the town of Lesnoy in the Sverdlovsk Region and the Evenk Autonomous District”). For all legal purposes, most of these entities were set up as entirely independent from the applicant, i.e. as belonging and being controlled by third persons, although their sole activity consisted of commissioning the applicant company to buy crude oil on their behalf from the company’s own oil-producing subsidiaries and either putting it up for sale on the domestic market or abroad, or first handing it over to the company’s own oil-processing plants and then selling it. There were no real cash transactions between the applicant company, its oil-processing and oil-producing subsidiaries and the trading entities, and the company’s own promissory notes and mutual offsetting were used instead. All the money thus accumulated from sales was then transferred unilaterally to the “Fund for Financial Support of the Production Development of OAO Neftyanaya Kompaniya YUKOS”, a commercial entity founded, owned and run by the applicant company. Since at all relevant times the applicant company took part in all of the transactions of the trading companies, but acted as the companies’ agent and never as an owner of the goods produced and processed by its own subsidiaries and since the compensation paid by the trading entities for its services was negligible, the applicant company’s real turnover was never reflected in any tax documents and, consequently, in its tax returns. In addition, most of the trading companies were in fact sham entities, as they were neither present nor operated in the place of their registration. In addition, they had no assets and no employees of their own. 15. The Ministry found it established, among other things, that: (a) the actual movement of the traded oil was from the applicant company’s production sites to its own processing or storage facilities; (b) the applicant company acted as an exporter of goods for the purpose of customs clearance, even though the goods had formally been owned and sold by sham companies; (c) through the use of various techniques, the applicant company indirectly established and, at all relevant times de facto, controlled and owned the sham entities; (d) all accounting operations of the companies were carried out by the same two entities, OOO “YUKOS” FBC and OOO “YUKOS” Invest, both dependant on or belonging to the applicant company; (e) the network of sham companies was officially managed by OOO “YUKOS” RM, all official correspondence, including tax documents, being sent from the postal address of OOO “YUKOS” Moskva, the applicant company’s managing subsidiary; (f) the sham companies and the applicant company’s subsidiaries entered into transactions with lowered prices for the purpose of reducing the taxable base of their operations; (g) all revenues perceived by the sham companies were thereafter unilaterally transferred to the applicant company; (h) statements by the owners and directors of the trading entities, who confessed that they had signed documents that they had been required to sign by the officials of the applicant company, and had never conducted any independent activity on behalf of their companies, were true; (i) and, lastly, that the sham companies received tax benefits unlawfully. 16. Having regard to all this, the Ministry decided that the activities of the sham companies served the purpose of screening the real business activity of the applicant company, that the transactions of these companies were sham and that it had been the applicant company, and not the sham entities, which conducted the transactions and became the owner of the traded goods. In view of the above, and also since neither the sham entities nor the applicant company qualified for the tax exemptions in question, the report concluded that the company, having acted in bad faith, had failed properly to reflect these transactions in its tax declarations, thus avoiding the payment of VAT, motorway tax, corporate property tax, tax for improvement of the housing stock and socio-cultural facilities, tax in respect of sales of fuels and lubricants and profit tax. 17. The report also noted specifically that the tax authorities had requested the applicant company to facilitate reciprocal tax inspections of several of its important subsidiaries. Five of the eleven subsidiary companies refused to comply, four failed to answer, whilst two entities filed incomplete documents. It also specified that during the on-site inspection the applicant company failed to provide the documents requested by the Ministry concerning the transportation of oil. 18. The report referred, inter alia, to Articles 7 (3), 38, 39 (1) and 41 of the Tax Code, section 3 of Law no. 1992-1 of the Russian Federation (RF) of 6 December 1991 “On Value-Added Tax”, sections 4 and 5 (2) of RF Law no. 1759-1 of 18 October 1991 “On motorway funds in the Russian Federation”, section 21 (“Ch”) of RF Law no. 2118-1 of 27 December 1991 “On the basics of the tax system”, Article 209 (1-2) of the Civil Code, section 2 of RF Law no. 2030-1 of 13 December 1991 “On corporate property tax”, section 2 (1-2) of RF Law no. 2116-1 of 27 December 1991 “On corporate profit tax”, Decision no. 138-O of the Constitutional Court of Russia of 25 July 2001 and Article 56 of the Tax Code. 19. On 12 January 2004 the applicant company filed its detailed thirty-page objections to the report. The company admitted that for a very short period of time it had partly owned three out of the twenty-two organisations mentioned in the report, but denied its involvement in the ownership and management of the remaining nineteen companies. They maintained this position about their lack of involvement in the companies in question throughout the proceedings. 20. During a meeting between the representatives of the Ministry and the company on 27 January 2004, the applicant company’s counsel were given an opportunity to state orally their arguments against the report. 21. Having considered the company’s objections, on 14 April 2004 the Ministry adopted a decision establishing that the applicant company had a large outstanding tax liability for the year 2000. As the applicant company had failed properly to declare the above-mentioned operations in its tax declarations and to pay the corresponding taxes, in accordance with Article 122 (3) of the Tax Code the Ministry found that the company had underreported its tax liability for 2000 and ordered it to pay 47,989,241,953 Russian roubles (“RUB”) (approximately 1,394,748,234 euros, (“EUR”) ) in tax arrears, RUB 32,190,599,501.40 (approximately EUR 935,580,142) in default interest and RUB 19,195,696,780 as a 40% penalty (approximately EUR 557,899,293), totalling RUB 99,375,538,234.40 (approximately EUR 2,888,227,669). The arguments contained in the decision were identical to those of the report of 29 December 2003. In addition, the decision responded in detail to each of the counter-arguments advanced by the company in its objections of 12 January 2004. 22. The decision was served on the applicant company on 15 April 2004. 23. The company was given until 16 April 2004 to pay voluntarily the amounts due. 24. The applicant company alleged that it had requested the Ministry to clarify the report of 29 December 2003 and that the Ministry had failed to respond to this request. (c) Institution of proceedings by the Ministry 25. Under a rule which made it unnecessary to wait until the end of the grace period if there was evidence that the dispute between the tax authority and the taxpayer was insoluble, the Ministry did not wait until 16 April 2004. 26. On 14 April 2004 it applied to the Moscow City Commercial Court (“the City Court”) and requested the court to attach the applicant company’s assets as a security for the claim. 27. By decision of 15 April 2004 the City Court initiated proceedings and prohibited the applicant company from disposing of some of its assets pending the outcome of litigation. The injunction did not concern goods produced by the company and related cash transactions. 28. By the same decision the court fixed the date of the preliminary hearing for 7 May 2004 and invited the applicant company to respond to the Ministry’s claims. 29. On 23 April 2004 the applicant company filed a motion in which it argued that the City Court had no territorial jurisdiction over the company’s legal headquarters and requested that the case be referred to a court in Nefteyugansk, where it was registered. 30. On 6 May 2004 the Ministry filed a motion inviting the court to call the applicant company’s managing subsidiary OOO “YUKOS” Moskva as a co-defendant in the case. (d) Hearing of 7 May 2004 31. At the hearing the City Court examined and dismissed the applicant company’s motion of 23 April 2004. Having regard to the fact that the applicant company was operated by its own subsidiary OOO “YUKOS” Moskva, registered and located in Moscow, the court established that the applicant company’s real headquarters were in Moscow and not in Nefteyugansk. In view of the above, the court concluded that it had jurisdiction to deal with the case. 32. On 17 May 2004 the applicant company appealed against this decision. The appeal was examined and dismissed by the Appeals Division of the Moscow City Commercial Court (“the Appeal Court”) on 3 June 2004. 33. The City Court also examined and granted the Ministry’s motion of 6 May 2004. The court ordered OOO “YUKOS” Moskva to join the proceedings as a co-defendant and adjourned the hearing until 14 May 2004. 34. At the hearing of 7 May 2004 the applicant company lodged with the City Court a separate action against the tax assessment of 14 April 2004, seeking to have the assessment decision declared unlawful. The applicant company’s brief came to 42 pages and had 22 supporting documents in annex. This action was examined separately and dismissed as unsubstantiated by the City Court on 27 August 2004. The judgment of 27 August 2004 was upheld on appeal on 23 November 2004. On 30 December 2005 the Circuit Court upheld the decisions of the lower courts. (e) Hearing of 14 May 2004 35. In the meantime the tax assessment case continued. On 14 May 2004 the City Court rejected the applicant company’s request to adjourn the proceedings, having found that the applicant company’s counterclaim did not require such adjournment of the proceedings concerning the Ministry’s action. 36. OOO “YUKOS” Moskva also requested that the hearing be adjourned as, it claimed, it was not ready to participate in the proceedings. 37. This request was rejected by the court as unfounded on the same date. 38. At the hearing the respondent companies also requested the City Court to vary their procedural status to that of interested parties. 39. The court rejected this request and, on the applicant company’s motion of 15 April 2004, ordered the Ministry to disclose its evidence. The company’s motion contained a lengthy list of specific documents which, it alleged, should have been in the possession of the Ministry in support of its tax claims. 40. The court then decided that the merits of the case would be heard on 21 May 2004. 41. On 17 May 2004 the Ministry invited the applicant company to examine the evidence in the case file at its premises. Two company lawyers went to the Ministry on 18 May and four lawyers went on 19 May 2004. 42. According to the applicant company, the supporting material underlying the case was first provided to the company on 17 May 2004, when the Ministry filed approximately 24,000 pages of documents. On 18 May 2004 the Ministry allegedly disclosed approximately a further 45,000 pages, and a further 2,000 pages on the eve of the hearing before the City Court, that is, on 20 May 2004. 43. Relying on a record dated 18 May 2004 [1], drawn up and signed by S. Pepelyaev and E. Aleynikova (Ministry representative A. Bondarev allegedly refused to sign it), the applicant company submitted that the documents in question had been presented in an indiscriminate fashion, in unpaginated and unsorted piles placed in nineteen plastic crates (ten of which contained six thousand pages each, with nine others containing some four thousand pages each). All of the documents were allegedly crammed in a room measuring three to four square metres, with two chairs and a desk. No toilet facilities or means of refreshment were provided. 44. According to the Government, the documents in question (42,269 pages - and not 45,000 pages as claimed by the applicant- filed on 18 May 2004, and a further 1,292 - and not 2,000 pages as claimed by the applicant company, filed on 20 May 2004) were well-known to the applicant company; moreover, it had already possessed these accounting and legal documents prior to the beginning of the proceedings. The documents allegedly reflected the relations between the applicant company and its network of sham entities, and the entirety of the management and accounting activities of these entities had been conducted by the applicant company from the premises of its executive body OOO Yukos-Moskva, located in Moscow. All of the documents were itemised in the Ministry’s document dated 17 May 2004 and filed in execution of the court’s order to disclose the evidence. 45. The Government also submitted that the applicant company’s lawyers could have studied the evidence both in court and at the Ministry’s premises throughout May, June and July 2004. (f) First-instance judgment 46. The hearings on the merits of the case commenced on 21 May and lasted until 26 May 2004. It appears that the applicant company requested the court repeatedly to adjourn the proceedings, relying, among other things, on the lack of sufficient time to study the case file. 47. The Government submitted that the first day of the hearings, 21 May 2004, was devoted to hearing and resolving various motions brought by the applicant company and OOO Yukos-Moskva. On 24 May 2004, after hearing further motions by OOO Yukos-Moskva, the court proceeded to the evidence phase of the trial. The Tax Ministry then explained the evidence that it had submitted to the court. During this phase of the trial, which continued on 25 May 2004, the applicant company’s representatives were able to ask questions, and the defendants made various motions. According to the Government, where the court found that the applicant company had not had an opportunity to review a particular document that the Ministry wished to refer to, the court refused to allow the document to be entered in the record. On 26 May 2004 the applicant company was afforded an opportunity to explain its evidence and to submit additional evidence. The applicant company chose instead to address questions to the Ministry. The applicant company concluded the first-instance hearing of the case with over three hours of pleadings, whilst the Ministry limited its pleadings to brief references to its own tax inspection report, the decision dated 14 April 2004 and the statement of claim. 48. On 26 May 2004, at the end of the hearings, the City Court gave its judgment in which, for the most part, it reached the same findings and came to the same conclusions as in the Ministry’s decision of 14 April 2004. Having confirmed the factual findings of the decision of 14 April 2004 in respect of the relations and transactions between the sham companies and the applicant company with reference to sundry pieces of evidence, including the statements by the nominal owners of the trading companies, acknowledging to the true nature of their relations with the applicant company, the court then reasoned as follows: “... Under section 3 of RF Law no. 1992-1 of 6 December 1991 ‘On value-added tax’, part 2 of section 5 and section 4 of RF Law no. 1759-1 of 18 October 1991 ‘On motorway funds in the Russian Federation’, subpart ‘ch’ of section 21 of RF Law no. 2118-1 of 27 December 1991 ‘On the basics of the tax system’, the sale of goods (works and services) gives rise to an obligation to pay VAT, motorway users’ tax, tax on the sale of oil and oil products and tax for the maintenance of the housing stock and socio-cultural facilities. Under part 1 of Article 38 of the Tax Code, objects of taxation may consist of the sale of goods (works and services), assets, profit, value of sold goods (works and services) or other objects having value, quantity or physical characteristics on the presence of which the tax legislation bases the obligation to pay tax. Under part 1 of Article 39 of the Tax Code, sales are defined as the transfer of property rights in respect of goods. Under subpart 1 and 2 of Article 209 of the Civil Code (taking into account Article 11 of the Tax Code) the owner of goods is the person who has the rights of ownership, use and disposal of his property, that is, the person who is entitled to carry out at his own discretion in respect of this property any actions which are not against the law and other legal acts and do not breach the rights and protected interests of other persons ... The court established that the owner of the oil sold under contracts concluded with organisations registered in low-tax territories had been OAO Yukos. The respondents’ arguments about the unlawfulness of the use of the notion of de facto owner ( фактический собственник ) on the basis that, according to Article 10 (3) and Article 8 (1) part 3 of the Civil Code ... there existed a presumption of good faith on the part of parties involved in civil-law transactions and that therefore the persons indicated as owners in the respective contracts should be regarded as the owners, are baseless, because the above-mentioned organisations never acquired any rights of ownership, use and disposal in respect of oil and oil products ( поскольку прав владения, пользования и распоряжения нефтью и нефтепродуктами у данных организаций не возникало ). OAO NK Yukos was therefore under an obligation to pay [the taxes], and this obligation has not been complied with in good time. Article 41 of the Tax Code establishes that profit is an economic gain in monetary form or in kind, which is taken into account if it is possible to evaluate it and in so far as it can be assessed. Under subparts 1 and 2 of section 2 of RF Law no. 2116-1 of 27 December 1991 ‘On profit tax of enterprises and organisations’ which was then in force, the object of taxation is the gross profit of the enterprise, decreased (or increased) in accordance with the provisions of the present section. The gross profit is the total of revenues (receipts) from the sale of products (works and services), main assets (including plots of land), other property belonging to the enterprise and the profit derived from operations other than sales, less the sum of expenses in respect of these operations. Since it follows from the case file that the economic profit from the sale of oil and oil products was perceived by OAO NK Yukos, it was incumbent on [the applicant company] to comply with the obligation to pay profit tax. Section 2 of RF Law no. 2030-1 of 13 December 1991 ‘On corporate property tax’ taxes the main assets, non-material assets, reserves and receipts which are indicated on the taxpayer’s balance sheet. It follows that the obligation to pay property tax was incumbent on the person who was legally responsible for reflecting the main assets, non-material assets, reserves and receipts on its balance sheet. Since it follows from the materials of the case that OAO NK Yukos was under such an obligation, this taxpayer was also under an obligation to pay property tax. The court does not accept the respondent’s arguments that the tax authorities lacked the power to levy taxes from OAO NK Yukos in respect of the sums ... perceived by other organisations. The power of the tax authorities to bring proceedings in courts to ensure the payment of taxes to the budget in cases of bad-faith taxpayers is confirmed by decision no. 138-O of the Constitutional Court of the Russian Federation, dated 25 July 2001. At the same time the bad faith of taxpayer OAO NK Yukos and the fact that the proceeds from transactions in oil and oil products were remitted to it is confirmed by the materials of the case file. The court has also established that the use of tax benefits by organisations which were dependent on OAO NK Yukos and participated in the tax-evasion scheme set up by that company was unlawful. Pursuant to Article 56 of the Tax Code, tax benefits are recognised as preferences provided for in the tax legislation for certain groups of taxpayers in comparison with other taxpayers, including the possibility of not paying a tax or of paying it at a lower rate. The court believes that tax payers must use their right to such benefits in good faith. Meanwhile, it follows from the materials of the case that the taxpayers [concerned] used their right in bad faith. The entities registered on the territory of the Republic of Mordoviya (OOO Yu-Mordoviya ..., ZAO Yukos-M ..., OAO Alta-Treyd ..., OOO Ratmir ..., OOO Mars XXII ...) applied benefits governed by Law of the Republic of Mordoviya no. 9-Z of 9 March 1999 ‘On conditions for the efficient use of the socio-economic potential of the Republic of Mordoviya’, which sets out a special taxation procedure for entities, for the purpose of creating beneficial conditions for attracting capital to the territory of the Republic of Mordoviya, developing the securities market and creating additional jobs. Under section 2 of that law, this special taxation procedure applies in respect of entities (including foreign entities operating through permanent representative offices established in the territory of the Republic of Mordoviya), established after the entry into force of the law (with the exception of entities conducting leasing activities, banks and other credit institutions) and whose business meets one of the following conditions: export operations, with the resulting quarterly earnings totalling at least 15% of the whole of the entity’s earnings; wholesale trading of combustibles and lubricants and other kinds of hydrocarbons with the resulting quarterly earning totalling at least 70% of the whole of the entity’s earnings; and other conditions enumerated in that law. Pursuant to sections 3 and 4 of the Law, the Government of the Republic of Mordoviya passed resolutions on the application of the special taxation procedure in respect of the mentioned entities and, consequently, on the application of the following tax rates: at the rate of 0% in respect of profit tax in so far as it is credited to the republican and local budgets of the Republic of Mordoviya; at the rate of 0% on motorway users’ tax in so far as it is credited to the Territorial Road Fund of the Republic of Mordoviya; and at the rate of 0% on corporate property tax. Moreover, the above-mentioned entities were exempted by local government resolutions from payment of tax for the maintenance of the housing stock and socio-cultural facilities. However, the special taxation procedure is provided for [by this law] for the purposes of creating favourable conditions in order to attract capital to the territory of the Republic of Mordoviya, develop the securities market and create additional jobs. The entities which used those benefits did not actually carry out their activities on the territory of this subject of the Russian Federation, did not attract capital and did not facilitate the strengthening of the Republic’s socio-economic potential, but, on the contrary, inflicted material damage through non-payment of taxes to the budget of the Republic, the local budget and the federal budget. Thus, the use of the tax benefits in respect of these entities was not aimed at improving the economy of the Republic of Mordoviya but pursued the aim of evading taxes on the production, refining and sales operations in respect of oil and oil products by OAO NK Yukos and is, as a consequence, unlawful. The entity registered on the territory of the Republic of Kalmykiya (OOO Sibirskaya Transportnaya Kompaniya ...) did not pay profit tax, property tax, motorway users’ tax, tax on the acquisition of vehicles and other taxes, under Law no. 12 ‑ P-3 of the Republic of Kalmykiya of 12 March 1999 ‘On tax benefits to enterprises investing in the economy of the Republic of Kalmykiya’, which establishes advantages in respect of taxes and duties for the ... taxpayers that invest in the economy of the Republic of Kalmykiya and are registered as such enterprises with the Ministry of Investment Policy of the Republic of Kalmykiya. Moreover, the entity in question was exempt from the payment of local taxes and ... of profit tax to the consolidated budget. At the same time, it follows from the presumption of good faith on the part of taxpayers (Decisions no. 138-O of the Constitutional Court of 25 July 2001, no. 4-O of 10 January 2002 and no. 108-O of 14 May 2002, Rulings of the Presidium of the Supreme Commercial Court no. 9408/00 dated 18 September 2001, no. 7374/01 of 18 June 2002, no. 6294/01 of 5 November 2002 and no. 11259/02 of 17 December 2002 and letter no. С5-5/уп-342 of the Deputy President of the Supreme Commercial Court of 17 April 2002) that, for the use of tax advantages to become lawful, the amount of advantages provided and the sum of investments made by the entity should be commensurate. Since the amounts of benefits declared for tax purposes by the above-mentioned entities and the sums of investment made are obviously not commensurate, application of the advantages is unlawful. The application of tax advantages by the given entity is not aimed at improving the economy of the Republic of Kalmykiya but pursues the aim of tax evasion by OAO NK Yukos in respect of the operations of production, refining and sales of oil and oil products and, consequently, is unlawful. The entity registered in the closed administrative territorial formation (‘ZATO’) town of Sarov in the Nizhniy Novgorod Region (OOO Yuksar ...) concluded a tax agreement on the provision of tax concessions with the Sarov municipal administration. The granting of additional tax advantages on the territory of the Sarov ZATO (Federal Nuclear Centre) in 2000 was regulated by the norms of Articles 21 and 56 of the Tax Code, section 58 of Law no. 227-FZ of 31 December 1999 ‘On the federal budget for the year 2000’, section 5 of Law no. 3297-1 ‘On closed administrative territorial formations’ of 14 July 1992, Item 2 of Paragraph 30 of Decree no. 222 of the Russian Government of 13 March 2000 ‘On measures for implementation of the Federal Law ‘On the Federal Budget for 2000’ and Regulations ‘On the investment zone of the town of Sarov’, approved by a Resolution of the Sarov Duma on 30 December 1999. According to the tax agreement, the Sarov administration confers advantages in respect of taxes payable into the Sarov budget to the entity in question in the form of a reduction in the share of taxes and other compulsory payments to the budget, up to 25% of the sums due in VAT, property tax, tax on the sale of fuel and lubricants, motorway users’ tax, tax on vehicle owners, tax on the acquisition of vehicles, profit tax, tax on operations with securities and excise duties; in exchange, the entity undertakes to participate in investment projects (programmes) implemented in the Sarov investment zone or with its participation, aimed at raising additional budget receipts and solving the problems of Sarov’s socio-economic development by transferring quarterly at least 1% of the sum of the tax advantages. At the same time, according to Paragraph 1 of section 5 of the Federal Law no. 3297-1 ‘On closed administrative territorial formations’ of 17 July 1992, additional benefits on taxes and duties are granted by the appropriate local government authorities to entities registered as taxpayers with the authorities of the closed administrative territorial formations in compliance with the above-mentioned law. Entities possessing at least 90% of their capital assets and conducting at least 70% of their activities on the territories of the closed administrative territorial formations (including the requirement that at least 70% of the average number of employees on the payroll must be made up of persons who permanently reside on the territory of the formation in question and that at least 70% of the labour remuneration fund must be paid to employees who permanently reside on the territory of the formation in question) enjoy the right to obtain the benefits in question. Given that OOO Yuksar did not actually carry out any activity on the territory of Sarov, was not actually present on the territory of Sarov and that there were no assets and production facilities necessary for the procurement and storage of oil on the territory of Sarov, Nizhniy Novgorod Region, the given entity applied the tax advantages unlawfully. Thus, the use of tax advantages by the given entity is not aimed at improving the economy of the Sarov ZATO but pursued the aimed of tax evasion by OAO NK Yukos in respect of its obligation to pay taxes on production and refining operations and the sale of oil and oil products and is, consequently, unlawful. Entities registered in the Trekhgornyy ZATO in the Chelyabinsk Region (OOO Kverkus ..., OOO Muskron ..., OOO Nortex ..., OOO Greis ... and OOO Virtus ...) concluded tax agreements with the administration of the town of Trekhgornyy, according to which entities were granted advantages in respect of profit tax, tax for the maintenance of the housing stock and socio-cultural facilities, property tax, land tax, tax on the sale of fuel and lubricants, motorway users’ tax, tax on vehicle users, and tax on the acquisition of vehicles, provided that the entities remitted the sum of 5% of the total amount of tax advantages conferred, for implementation of the town’s socio-economic programmes, to the Trekhgornyy administration... Reasoning from the contents and meaning of the tax agreements, it follows that their purpose was implementation of the particularly important socio-economic task of developing the educational, medical and housing spheres in the Trekhgornyy ZATO. At the same time, the sums which were transferred to the budget by the taxpayers in question were many times lower than the sums of the declared tax advantages (the sum of investments is around 0.006% of the sum of the advantages for each taxpayer). Thus, the investments made by the taxpayers did not influence the development of Trekhgornyy’s economy. On the contrary, since the above-mentioned organisations did not in fact carry out any activities, were never located on the territory of Trekhgornyy, had no assets and none of the production facilities necessary to buy and store oil on the territory of Trekhgornyy, the application of tax advantages by the above-mentioned organisations is contrary to part 1 of section 5 of RF Law no. 3297-1 of 17 July 1992 ‘On closed administrative territorial formations’. The organisations registered in the Lesnoy ZATO in the Sverdlovsk Region (OOO Mitra ..., OOO Vald-oyl ..., OOO Bizness-oyl ...) concluded tax agreements on the granting of a targeted tax concession under which organisations were granted the concession in respect of profit tax, land tax, tax on the sales of fuel and lubricants, motorway users’ tax, vehicle users’ tax, tax on the acquisition of vehicles, tax for the maintenance of the housing stock and socio-cultural facilities and property tax, whilst the organisations [in question] were under an obligation to transfer to ... the Lesnoy municipal administration sums amounting to 5% of the sums of the granted tax concessions, but no less than 6,000 roubles quarterly, for implementation of the town’s socio-economic programmes. [However], the amounts received from the taxpayers are many times lower than the totals of the declared tax advantages. Accordingly, the investments made by the taxpayers did not influence the development of the economy of the town of Lesnoy because the above-mentioned organisations never carried out any activities on the territory of Lesnoy, were never in fact located on the territory of Lesnoy and had no assets and none of the production facilities required to sell and store oil on the territory of Lesnoy, [and thus] the application of the tax advantages in respect of the above-mentioned organisations is contrary to part 1 of section 5 of RF Law no. 3297-1 of 17 July 1992 ‘On closed administrative territorial formations’. The organisation registered in the Evenk Autonomous District (OOO Petroleum-Treiding) without in fact carrying out any activity on the territory of the district in question and without in fact being located on the territory of the Evenk Autonomous District, abused its right granted by Law no. 108 of the Evenk Autonomous District of 24 September 1998 ‘On specific features of the tax system in the Evenk Autonomous District’. The mentioned organisation was registered in the given district solely for the purpose of acquiring the right to the tax concession that could be granted in the Evenk Autonomous District. The use of the tax benefits by the organisation in question is not aimed at strengthening of economy of the Evenk Autonomous District, but is instead aimed at tax evasion by OAO NK Yukos in respect of extraction and processing transactions and the sale of oil and oil products and is thus unlawful. Thus, the use of tax concessions by the above-mentioned organisations is not aimed at strengthening the economy of the regions in which they were registered but is aimed at evading the taxes due in respect of the operations of extraction and processing transactions and the sale of oil and oil products by OAO NK Yukos and is thus unlawful. ...” 49. The first-instance judgment also responded to the applicant company’s submissions. As regards the argument that the Ministry’s calculations were erroneous in that they led to double taxation and the failure to take account of the right to a refund of VAT for export operations, the court noted that, contrary to the applicant company’s allegations, both the revenues and expenses of the sham entities had been taken into account by the Ministry so as to avoid double taxation. In addition, under Law no. 1992-1 of 6 December 1991 “On value-added tax”, in order to claim a refund of the VAT paid during export operations a taxpayer had to justify the claim in accordance with a special procedure and the applicant company had failed to apply for a refund either in 2000 or at any later date. As to the argument that the Ministry’s claim was time-barred, the court refuted it with reference to Article 113 of the Tax Code and Decision no. 138-O of the Constitutional Court of 21 July 2001. The court held that the rules on limitation periods were inapplicable in the case at issue as the applicant company had acted in bad faith. In response to the company’s argument that the interdependency within the meaning of Article 20 of the Tax Code was only relevant for the purposes of price correction under Article 40 of the Code, the court observed that the interdependency of the sham companies and the applicant company was one of the circumstances on the basis of which the tax authorities had proved that the tax offence had been committed by the applicant company in bad faith. 50. Accordingly, by the judgment of 26 May 2004 the court upheld the decision of 14 April 2004, albeit slightly reducing the payable amounts by reference to the Ministry’s failure to prove the relations of the applicant company with one of the entities mentioned in the decision of 14 April 2004. The court ordered the applicant company to pay RUB 47,989,073,311 (approximately EUR 1,375,080,541) in taxes, RUB 32,190,430,314 (approximately EUR 922,385,687) in default interest and RUB 19,195,606,923 (approximately EUR 550,031,575) in penalties, totalling RUB 99,375,110,548 (approximately EUR 2,847,497,802) and ordered its managing subsidiary OOO “YUKOS” Moskva to comply with this decision. The judgment could be appealed against by the parties within a thirty-day time-limit. 51. At the hearings of 21 to 26 May 2004 the applicant company and its managing subsidiary were represented by eight counsel. The reasoned copy of the judgment of 26 May 2004 was produced and became available to the parties on 28 May 2004. (g) Appeal proceedings 52. On 1 June 2004 OOO “YUKOS” Moskva filed an appeal against the judgment of 26 May 2004. 53. The Ministry appealed against the judgment on 2 June 2004. 54. On 4 June 2004 the Appeal Court listed the appeals of OOO “YUKOS” Moskva and the Ministry to be heard on 18 June 2004. 55. On 17 June 2004 the applicant company filed its appeal against the judgment of 26 May 2004. The brief came to 115 pages and contained 41 documents in annex. The company complained, in particular, that the time for filing an appeal had been unlawfully abridged, in breach of its rights to fair and adversarial proceedings, that the first-instance judgment was ungrounded and unlawful, that the evidence in the case was unlawful, that the first-instance court had erred in interpretation and application of the domestic law, in that it had lacked legal authority to “assign” the tax liabilities of one company to another, and that the court’s interpretation of the legislation on tax concessions had been erroneous. The company also argued that the lower court had wrongly assessed the evidence in the case and had come to erroneous factual conclusions in respect of the relationships between the applicant company and the sham companies, that in any event some of the operations of the sham companies had been unrelated to the alleged tax evasion and that the respective sums should not be “assigned” to the applicant company, and also that the case should have been tried in the town of Nefteyugansk, where the company was registered. 56. The Government submitted that the applicant company attempted to delay the examination of the case by dispatching the appeal brief to an erroneous address. According to the applicant, the above allegation was unsubstantiated. 57. The appeal hearing in the case lasted from 18 to 29 June 2004. 58. At the beginning of the hearing on 18 June 2004 the applicant company requested the Appeal Court to adjourn the proceedings. The company considered that the hearing had been fixed for too early a date, before the expiry of the statutory time-limit for lodging appeals. 59. The court refused this request as unfounded. 60. At the hearings of 21 and 28 June 2004 the applicant company filed four supplements to its appeal. The company and its managing subsidiary were represented by ten counsel. 61. Under Article 268 of the Code of Commercial Court Procedure the court fully re-examined the case presented by the Ministry rather than simply reviewing the first-instance judgment. 62. At the end of the hearing of 29 June 2004 the court delivered its judgment, in which it reached largely similar findings and came to the same conclusions as the first-instance judgment. The court dismissed the company’s appeals as unfounded, but decided to alter the first-instance judgment in part. In particular, it declared the Ministry’s claims in respect of VAT partly unfounded, reduced the amount of the VAT arrears by RUB 22,939,931 (approximately EUR 649,336) and quashed the corresponding penalty of RUB 10,334,226 (approximately EUR 292,520). 63. The court judgment, in its relevant parts, read as follows: “... The parties declared under part 5 of Article 268 of the Code of Commercial Courts Procedure that there was a need to verify the lawfulness and grounds of the first-instance judgment and to hold a fresh hearing of the case in full. The Appeal Court has checked the lawfulness and grounds of the first-instance judgment pursuant to ... Article 268 ... of the Code of Commercial Court Procedure. ... The Appeal Court does not accept the arguments of the respondents concerning erroneous interpretation and application of the norms of the substantive law by the first-instance court and concerning the factual incorrectness of that court’s conclusions. [The court went on to review and confirm all factual findings made by the Ministry and the first-instance court in respect of the tax-evasion scheme set up by the applicant company.] ... Bearing in mind the above-mentioned circumstances, the Appeal Court has established that the de facto owner of the oil was [the applicant company]. The acquisition of the oil and its transfer and subsequent sale was in reality carried out by [the applicant company] as the owner, which is proved by the control of [the applicant company] over all operations, and the actual movement of the oil from the extracting entities to processing entities or oil facilities controlled by [the applicant company], which is proved by the materials of the case. ... The [applicant company’s] ownership of the oil is confirmed by the interdependence of the contracting parties, by the control that [the applicant company] had over them, by the registration of the contracting parties on territories with a low-tax regime, by the lack of activities by these entities at their place of registration, by the fact that the accounting operations for these entities was carried out by OOO Yukos-Invest or OOO Yukos-FBC, companies officially dependant on [the applicant company], by the fact that the accounting for these entities was filed from the addresses of [the applicant company] and OOO Yukos-Moskva, by the fact that their bank accounts were opened in the same banks owned by [the applicant company], by the presence and character of commercial relations between [the applicant company] and the dependent entities, and by the use of promissory notes and mutual offsetting between them. ... Under the legislation then in force, such as section 3 of RF Law no. 1992-1 of 6 December 1991 ‘On value-added tax’, part 2 of Section 5 and section 4 of RF Law no. 1759-1 of 18 October 1991 ‘On motorway funds in the Russian Federation’, subpart ‘ch’ of section 21 of RF Law no. 2118-1 of 27 December 1991 ‘On the basics of the tax system’, the sale of goods (works and services) gives rise to an obligation to pay VAT, motorway users’ tax, tax on the sale of oil and oil products and the tax for the maintenance of the housing stock and socio-cultural facilities. Under part 1 of Article 39 of the Tax Code, sales are defined as the transfer of property rights in respect of goods. Under subpart 1 and 2 of Article 209 of the Civil Code (taking into account Article 11 of the Tax Code) the owner of goods is the person who has the rights of ownership, use and disposal of his property, that is, the person who is entitled to carry out at his own discretion in respect of this property any actions which are not against the law and other legal acts and do not breach the rights and protected interests of other persons... It follows that the person who in fact has the rights of ownership, use and disposal of the property and who, in view of these rights, exercises in reality and at his discretion in respect of his property any actions, including transfers of property to other persons ... is the owner of this property. Therefore, OAO NK Yukos, being the de facto owner of the oil, was under an obligation to pay [the taxes], which has not been complied with in good time. As was previously established, Article 41 of the Tax Code sets out that profit is an economic gain in monetary form or in kind, which is taken into account if it is possible to evaluate it and in so far as it can be assessed, and determined in accordance with the chapters ‘Taxes in respect of the profits of natural persons’, ‘Taxes in respect of the profits of organisations’, and ‘Taxes in respect of the capital profits’ of the Tax Code of the Russian Federation. Under subparts 1 and 2 of section 2 of RF Law no. 2116-1 of 27 December 1991 ‘On profit tax of enterprises and organisations’ which was then in force, the object of taxation is the gross profit of the enterprise, decreased (or increased) in accordance with the provisions of the present section. The gross profit is the total of revenues (receipts) from the sale of products (works and services), main assets (including land parcels), other property of the enterprise and the profit derived from operations other than sales, less the sum of expenses in respect of these operations. The court established that the economic profit from the sale of oil and oil products was perceived by OAO NK Yukos, [and] it was incumbent on [the applicant company] to comply with the obligation to pay profit tax. Section 2 of RF Law no. 2030-1 of 13 December 1991 ‘On corporate property tax’ taxes the main assets, non-material assets, reserves and receipts which are indicated on the taxpayer’s balance sheet. It follows that the obligation to pay property tax was incumbent on the person who was legally responsible for reflecting the main assets, non-material assets, reserves and receipts on its balance sheet. Since it follows from the materials of the on-site tax inspection that OAO NK Yukos was under such an obligation, this taxpayer was also under an obligation to pay property tax. The Constitutional Court of the RF in its decision of 25 July 2001 no. 138-0 stated that it followed from the meaning of the norm contained in part 7 of Article 3 of the Tax Code of the RF that there is a presumption of good faith on the part of taxpayers. In order to refute this and establish the taxpayer’s bad faith, the tax authorities have the right – in order to strike a balance between public and private interests – to carry out necessary checks and bring subsequent claims in commercial courts in order to guarantee the payment of taxes to the budget. In view of the above, the tax authorities ... have the right to carry out checks with a view to establishing the de facto owner of sold property and the de facto recipient of the economic profit, and also with a view to establishing [the owner’s] bad faith as expressed in use of the tax-evasion scheme. At the same time, the tax authorities establish the de facto owner with regard to the actual relations between the parties to the transaction, irrespective of whether the persons were declared as owners of the property in the documents submitted during the tax inspections. The circumstances indicating that OAO NK Yukos had in fact the rights of ownership, use and disposal of its oil and oil products and, at its discretion, carried out in this connection any actions, including the sale, transfer for processing, etc., through specially registered organisations dependant on OAO NK Yukos is confirmed by the materials of the case. ... In view of the above, the court does not accept the respondent’s arguments about the unlawfulness and the lack of factual basis of the decision to levy additional taxes from OAO NK Yukos as the de facto owner of the oil and oil products. The respondent’s argument that OAO NK Yukos had not perceived any economic profit from the application of benefits by the entities mentioned in the decision of the Ministry contradicts the materials of the case. The court had established that OAO NK Yukos received economic profit in the form of unilateral transfers of cash. OAO NK Yukos set up the Fund for Financial Support of the Production Development of OAO NK Yukos [to this end]. ... The argument of OAO NK Yukos that the Ministry is levying taxes in respect of transactions “within the same owner” is unsupported, since the calculations of additional taxes (except for the property tax in respect of which [this is inapplicable]) also take into account the expenses connected with the acquisition of the oil and oil products. The court does not accept the respondent’s arguments that the tax authorities lacked the power to levy taxes from OAO NK Yukos in respect of the sums ... perceived by other organisations. The power of the tax authorities to bring proceedings in courts to ensure the payment of taxes to the budget in cases of bad-faith taxpayers is confirmed by decision no. 138-O of the Constitutional Court of the Russian Federation, dated 25 July 2001. At the same time the bad faith of taxpayer OAO NK Yukos and the fact that the proceeds from transactions involving oil and oil products belonged to it is confirmed by the materials of the case file. The circumstances of the ... acquisition and sale of the oil and oil products, taken in their entirety, as established by the Appeal Court, indicate the presence of bad faith in the actions of OAO NK Yukos, which was expressed in intentional actions aimed at tax evasion by the use of unlawful schemes. In accordance with part 2 of Article 110 of the Tax Code of the RF the tax offence is considered intentional if the person who has committed it knew about the unlawful character of the actions (inactions), wished them or knowingly accepted the possibility of the harmful consequences of such actions (inactions). Since OAO NK Yukos intentionally committed actions aimed at tax evasion, and its officers were aware of the unlawful character of such actions, wished or knowingly accepted the possibility of harmful consequences due to such actions, OAO NK Yukos must be held liable under part 3 of Article 122 of the RF Tax Code for the non-payment or incomplete payment of taxes due to the lowering of the taxable base or incorrect calculation of the tax or other unlawful actions (inactions) committed intentionally, in the form of a fine equivalent to 40% of the unpaid taxes. ... Having re-examined the case and verified the lawfulness and grounds of the first-instance judgment in full, having examined the evidence and having heard the arguments of the parties, the Appeal Court has come to the conclusion that the decision of the Ministry dated 14 April 2004 ... is in compliance with the Tax Code as well as with Federal laws and other laws on taxes... The claims for payment of taxes, interest surcharges and fines made in the decision of the Ministry of 14 April 2004 ... are grounded, lawful and confirmed by the primary documents of the materials of the inspection submitted in justification to the court. ...” 64. The appeal judgment also responded to the applicant company’s other arguments. As regards the alleged breaches of procedure and the lack of time for the preparation of the defence at first instance, the court noted that it had examined this allegation and that there had been no violation of procedure at first instance and that, in any event, the applicant company had had ample opportunities to study the evidence relied on by the Ministry both at the Ministry’s premises and in court. As regards the argument that the evidence used by the Ministry was inadmissible, the court noted that the materials of the case had been collected in full compliance with the requirements of the domestic legislation. The court also agreed with the first-instance court that the three-year statutory time-limit had been inapplicable in the applicant company’s case since the company had been acting in bad faith. 65. The first-instance judgment, as upheld on appeal, came into force on 29 June 2004. 66. The applicant company had two months from the date of the delivery of the appeal judgment to challenge it in third-instance cassation proceedings ( кассация ). (h) Cassation proceedings 67. On 7 July 2004 the applicant company filed a cassation appeal against the judgments of 26 May and of 29 June 2004 with the Federal Commercial Court of the Moscow Circuit (“the Circuit Court”). The applicant company’s brief came to 77 pages and had 6 documents in annex. The arguments in the brief were largely similar to those raised by the applicant company on appeal, namely that the judgment was unlawful and unfounded, that the entities mentioned in the report ought to have taken part in the proceedings, that the trial court had had insufficient evidence to conclude that the applicant company and other entities were interrelated, that the evidence used by the trial court was unlawful, that the trial proceedings had not been adversarial and that the principle of equality of arms had been breached. In addition, the company alleged that it had had insufficient time to study the evidence and had been unable to contest the evidence in the case, that the Ministry had unlawfully applied to a court before the applicant company had had an opportunity to comply voluntarily with the decision of 14 April 2004, that the entities mentioned in the report had in fact been eligible for the tax exemptions, that the rules governing tax exemption had been wrongly interpreted, that the Ministry’s claims had been time-barred, that the company had had insufficient time for the preparation of the appeal, and that the case ought to have been examined by a court in Nefteyugansk. 68. A copy of the reasoned version of the appeal judgment of 29 June 2004 was attached to the brief. 69. It appears that on an unspecified date the Ministry also challenged the judgments of 26 May and 29 June 2004. 70. On 17 September 2004 the Circuit Court examined the cassation appeals and upheld in substance the judgments of 26 May and 29 June 2004. 71. In respect of the applicant company’s allegations of unfairness in the appeal proceedings, the court noted that both defendant companies had had ample opportunities to avail themselves of their right to bring appeals within the statutory time-limit, as the appeal decision was not taken until 29 June 2004, which was more than thirty days after the date of delivery of the judgment of 26 May 2004. Furthermore, the court observed that the evidence presented by the Ministry and examined by the lower courts was lawful and admissible, and that it had been fully available to the defendant companies before the commencement of the trial hearings. The court also noted that on 14 May 2004 the City Court specifically ordered the Ministry to disclose all the evidence in the case, that this order had been complied with by the Ministry and that, despite the fact that the evidence was voluminous, the applicant company had had sufficient time to examine and challenge it repeatedly throughout the proceedings between May and July 2004. 72. As regards the applicant company’s complaint that the Ministry had brought proceedings before the expiry of the time-limit for voluntary compliance with the decision of 14 April 2004, the court noted that the Ministry and lower courts had acted in compliance with Article 213 of the Code of Commercial Court Procedure, as there were irreconcilable differences between the parties and, throughout the proceedings, the applicant company had had insufficient funds to satisfy the Ministry’s claims. 73. In respect of the applicant company’s argument that the case should have been tried by a court in Nefteyugansk, the court noted that the City Court had had jurisdiction over the case under Article 54 of the Civil Code and decision no. 6/8 of the Plenary Session of the Supreme Court and Supreme Commercial Court of 1 July 1996. 74. On the merits of the case, the court noted that the lower courts had reached reasoned conclusions that the applicant company was the effective owner of all goods traded by the sham companies registered in low-tax areas, that the transactions of these entities were in fact those of the applicant company, that neither the applicant company nor the sham entities were eligible for the tax exemptions and that the applicant company had perceived the entirety of the resulting profits. The court upheld the lower courts’ conclusion that, acting in bad faith, the applicant company had failed properly to declare its transactions for the year 2000 and to pay corresponding taxes, including VAT, profit tax, motorway users’ tax, property tax, the tax for the maintenance of the housing stock and socio-cultural facilities and tax on the sale of fuel and lubricants. 75. The court noted some arithmetical mistakes in the appeal judgment of 29 June 2004, increasing the penalty by RUB 1,158,254.40 (approximately EUR 32,613) and reducing the default interest by RUB 22,939,931 (approximately EUR 645,917) accordingly. (i) Constitutional review 76. On an unspecified date the applicant company lodged a complaint against the domestic courts’ decisions in its case with the Constitutional Court. It specifically raised the question of the lower courts’ refusal to apply the statutory time-limit set out in Article 113 of the Tax Code. 77. By decision of 18 January 2005 the Constitutional Court declared the complaint inadmissible for lack of jurisdiction. The court noted that the applicant company did not in fact challenge the constitutionality of Article 113 of the Code but rather insisted that this provision was constitutional and should be applied in its case. Therefore, the applicant company was not complaining about the breach of its rights by the above-mentioned provision and, accordingly, the court had no competence to examine the applicant company’s claims. (j) Supervisory review 78. Simultaneously to bringing the cassation appeal, on 7 July 2004 the applicant company also challenged the judgments of 26 May and 29 June 2004 by way of supervisory review before the Supreme Commercial Court of Russia. 79. On 31 December 2004 the applicant company’s case was accepted for examination by the Supreme Commercial Court. 80. By a decision of 13 January 2005 the Supreme Commercial Court, sitting as a bench of three judges, decided to relinquish jurisdiction in favour of the Presidium of the Supreme Commercial Court. Addressing one of the applicant company’s arguments, the court noted that the lower courts had decided that the three-year statutory time-bar was inapplicable in the case at issue since the applicant company had been acting in bad faith. It further noted that such an interpretation of the rules governing the time-limits was not in line with the existing legislation and case-law and that therefore the issue should be resolved by the Presidium of the Supreme Commercial Court. 81. On 19 April 2005 the Presidium of the Supreme Commercial Court referred the above-mentioned issue to the Constitutional Court and adjourned the examination of the applicant company’s supervisory review appeal pending a ruling by the Constitutional Court. 82. By a decision of 14 July 2005 the Constitutional Court decided that it was competent to examine the question of the compatibility of Article 113 of the Tax Code with the Constitution, having cited the application of an individual, one G. A. Polyakova, and the referral by the Supreme Commercial Court. At the same time, it noted specifically that it had no competence to decide individual cases and its ruling would only deal with the points of law in abstracto. 83. It appears that the legal issues raised by G. A. Polyakova and the applicant company were different. G. A. Polyakova was dissatisfied with the established court practice which required the tax authorities, rather than the courts, to hold a taxpayer liable for a tax offence within the three-year time-limit set out in Article 113 of the Code. On the facts of her individual case, the decision of the tax authorities was taken on time, whilst later the final decision by the courts was taken outside the specified time-limit. As regards the applicant company, it raised the same point which had been previously declared inadmissible by the Constitutional Court in its decision dated 18 January 2005, namely the refusal of the courts in its case to follow the established practice and to declare the claims of the authorities time-barred, as they related to the year 2000 and were set out in the decision to hold the applicant liable for a tax offence on 14 April 2004, that is, outside the three-year time-limit laid down by Article 113 of the Code. 84. As a result of its examination, the Constitutional Court upheld Article 113 of the Tax Code as compatible with the Constitution, having ruled that the legal provisions on the statutory time-limits ought to be applied in all cases without exception. The court made an abstract review of the provision in question and mentioned the “principles of justice”, “legal equality” and “proportionality” in giving its own “constitutional interpretation” of Article 113. The court noted that the rule set out in Article 113 of the Code was too strict and failed to take into account various relevant circumstances and the actions of taxpayers, including those aimed at hindering tax control and delaying the proceedings. It further ruled that: “... the provisions of Article 113 of the Tax Code of the Russian Federation in their constitutional and legal sense and in the present legal context do not exclude [the possibility] that, where the taxpayer impedes tax supervision and the conduct of tax inspections, the court may excuse the tax authorities’ failure to bring the proceedings in time ...” “... In their constitutional and legal sense in the context of the present legal regulation... [these provisions] mean that the running of the statutory time-bar in respect of a person prosecuted for tax offences stops on the date of the production of the tax audit report in which the supported facts of the tax offences revealed during the inspection are mentioned and in which there are reference to the relevant articles of the Tax Code or - in cases where there was no need to produce such a report - from the moment on which the respective decision of the tax authority, holding a taxpayer liable for a tax offence, was taken. ...” 85. Three out of the nineteen judges filed separate opinions in this case. 86. Judge V. G. Yaroslavtsev disagreed with the majority, having noted that the Constitutional Court acted ultra vires and openly breached the principle of lawfulness by creating an exception from the rule set out in Article 113 where there had previously been none. 87. Judge G. A. Gadzhiev concurred with the conclusions of the majority but would have preferred to quash, rather than uphold, Article 113 of the Tax Code as unconstitutional and breaching the principle of equality. 88. Judge A. L. Kononov dissented from the majority ruling, having considered that the Constitutional Court clearly had no competence to decide the matter and that indeed there had been no constitutional issue to resolve as, among other things, there had been no prior difficulties in application of Article 113 of the Tax Code and the contents of this provision had been quite clear. He also criticised the “inexplicable” way in which the Constitutional Court had first rejected the application by the applicant company and had then decided to examine the matter again. Judge Kononov further noted that the decision of the Constitutional Court was vague, unclear and generally questionable. 89. The case was then returned to the Presidium of the Supreme Commercial Court. 90. On 4 October 2005 the Presidium of the Supreme Commercial Court examined and dismissed the applicant company’s appeal. In respect of the company’s argument that the Ministry’s claims were time-barred, the court noted that during the tax proceedings the company had been actively impeding the tax inspections. In view of this and given the Constitutional Court’s ruling, the court concluded that since the Ministry’s tax audit report in the applicant’s case had been completed on 29 December 2003, that is, within the statutory three-year time-limit as interpreted in the Constitutional Court’s decision of 14 July 2005, the case was not time-barred. 2. Enforcement measures relating to the 2000 Tax Assessment 91. Simultaneously with the determination of the case before the courts in respect of the applicant company’s tax liability for the year 2000, the parties also took part in various enforcement proceedings. (a) Attachment of the applicant’s property (i) The City Court’s decision of 15 April 2004 92. On 15 April 2004 the City Court accepted for consideration the Ministry’s action in respect of the year 2000 and attached certain of the applicant company’s assets, excluding goods produced by the company and related cash transactions, as a security for the claims. The court also issued writs of execution in this respect (see paragraph 27). This decision was upheld by the Appeal Court on 2 July 2004. (ii) Enforcement of attachment by the bailiffs 93. By a decision of 16 April 2004 the bailiffs instituted enforcement proceedings in connection with the attachment. 94. On the same day they executed the attachment order by informing the applicant company and the holder of its corporate register, ZAO ‘M-Reestr’, of the decision of 15 April 2004. 95. According to the Government, the applicant company impeded the execution of the writs issued by the court by hiding its corporate register from the bailiffs. In particular, they alleged that a few hours prior to the bailiffs’ visit, the applicant company had cancelled its contracts with ZAO ‘M ‑ Reestr’. The register was then dispatched by ordinary post to a location in Russia so that, over the next weeks, it could not be physically found and the execution writs could not be enforced. (iii) The company’s offer of 22 April 2004 96. On 22 April 2004 the applicant company filed its first court request to have the attachment of the entirety of its assets replaced by the attachment of shares belonging to it in OAO Sibirskaya neftyanaya kompaniya (“the Sibneft company”, a major Russian oil company which had attempted unsuccessfully to merge with the applicant company in 2003), which were allegedly worth three times as much as the then liability. The applicant company also alleged that the attachment order adversely affected its proper functioning and invited the authorities to opt for less intrusive measures, insisting on the lack of any risk of asset-stripping. 97. By a decision of 23 April 2004 the City Court examined and dismissed this request as unfounded. The court found no evidence that the interim measures affected any of the company’s production activities. 98. On 17 May 2004 the applicant company appealed against the decision of 23 April 2004. 99. The outcome of court proceedings in respect of the applicant company’s appeal of 17 May 2004 is unclear. 100. The Government provided the following background information in connection with the company’s offer of shares in Sibneft. The applicant company had attempted to merge with Sibneft in May-September 2003. As a result of the initial stages of the merger, the applicant company acquired 92% of Sibneft: 20% of these shares were bought for cash, whilst 57.5% were exchanged for 17.2% of the applicant company’s newly issued shares and 14.5% were swapped for 8.8% of the applicant company’s existing shares. In November 2003 it was announced publicly that, at the request of the former Sibneft owners, the parties had decided not to go ahead with the merger. In February 2004 the owners of Sibneft sued the applicant company in this connection, demanding cancellation of the operation whereby the applicant had issued 17.2% of shares. Among other things, on 14 February 2004 they obtained an attachment order in respect of the Sibneft shares remaining in the possession of the applicant company pending the proceedings. On 1 March 2004 the City Court decided to cancel the issue of 17.2% shares by the applicant company. The Government submitted that it was clear from the above-mentioned account that on 22 April 2004, the date on which the applicant company first made the offer of Sibneft shares, the owners of Sibneft already anticipated suing the applicant company again, this time demanding back the 57.5% of Sibneft shares swapped for the cancelled 17.2% of the applicant company’s shares. At the same time, the fate of the remaining issues of Sibneft shares still in the possession of the applicant company was also uncertain. (iv) The applicant company’s request for an injunction against the attachment 101. On 23 April 2004 the City Court also examined the applicant company’s request for an injunction order against the attachment and rejected it. The court noted that the attachment did not interfere with the company’s day-to-day operations and it was a reasonable measure aimed at securing the Ministry’s claims. 102. On 2 July 2004 the Appeal Court rejected the company’s appeal and upheld the judgment. 103. It does not appear that the applicant company brought cassation proceedings in this respect. (b) Enforcement of the Tax Ministry’s decision of 14 April 2004 104. In the meantime, on 7 May 2004 the applicant company applied to the City Court with a separate action against the tax assessment of 14 April 2004, seeking its invalidation (see paragraph 34 and 35 above). The company also requested interim measures in this connection. 105. Following the applicant company’s request for interim measures, on 19 May 2004 the City Court stayed the enforcement of the Tax Ministry’s decision of 14 April 2004, having noted that the Ministry could have enforced the decision in the part relating to taxes and default interests even without waiting for the outcome of the Ministry’s claim (Article 46 of the Tax Code [2] ). The court decided, however, that this might be detrimental to the applicant company and stayed the decision of 14 April 2004 accordingly. 106. On 27 May 2004 the applicant company made a public announcement that: “... it [was] under an injunction prohibiting it from selling any of its property, including the shares owned by the company. Until the injunction is lifted, the Company is unable to sell its assets in order to obtain liquid funds. Consequently, if the Tax Ministry’s efforts continue, we are very likely to enter a state of bankruptcy before the end of 2004”. 107. It appears that the City Court’s decision of 19 May 2004 to stay the enforcement was appealed against by the Ministry. Having examined the Ministry’s arguments at the hearing of 23 June 2004, the Appeal Court quashed the first-instance decision of 19 May 2004 as unlawful and rejected the applicant company’s request for interim measures as unfounded. 108. It does not appear that the applicant company appealed against this decision before the Circuit Court. (c) Enforcement of the judgments concerning the 2000 Tax Assessment (i) First-instance judgment of 26 May 2004 and the appeal decision of 29 June 2004 109. As mentioned above (paragraphs 46-66), by a judgment of 26 May 2004 the City Court found in favour of the Tax Ministry, upholding the Tax Assessment of 14 April 2004. The Tax Assessment was upheld by the Appeal Court with minor reductions and became enforceable on 29 June 2004. 110. On 30 June 2004 the Appeal Court issued the writ of enforcement in this respect. The applicant company was to pay RUB 47,958,133,380 (approximately EUR 1,358,914,565) in reassessed taxes, RUB 32,190,430,314 (approximately EUR 912,129,842) in interest surcharges and RUB 19,185,272,697 (approximately EUR 543,623,045) in penalties. (ii) Enforcement proceedings in respect of the writ of 30 June 2004 111. On 30 June 2004 the bailiffs instituted enforcement proceedings based on the above judgment and gave the applicant company five days to pay. The applicant company was informed that it would be liable to pay enforcement fees of 7%, totalling RUB 6,953,375,547 (approximately EUR 197,026,920), in the event of failure to honour the debt voluntarily. Upon the Ministry’s application, the bailiffs issued sixteen orders freezing the cash held by the applicant company in its Russian bank accounts. The orders did not concern cash added to the accounts after 30 June 2004. (iii) The applicant company’s challenge to the decision of 30 June 2004 112. On 7 July 2004 the applicant company challenged the bailiffs’ decision of 30 June 2004. 113. It argued that the decision to open enforcement proceedings had been unlawful as it was in breach of the rules of bailiffs’ territorial competence as the enforcement ought to have taken place in Nefteyugansk and not in Moscow, that the five-day term for voluntary compliance with the court decisions had been too short and that the cash-freezing orders had made such compliance impossible. 114. On 30 July 2004 the City Court examined and dismissed these claims as groundless. The court ruled that the bailiffs had acted lawfully and that the cash-freezing orders did not interfere with its ability or inability to honour its debts, as the applicant company had been free to dispose of any cash not in the frozen accounts and any cash added to those accounts after 30 June 2004. 115. It does not appear that the company brought appeal proceedings against this judgment. (d) Seizure of 24 subsidiary companies and related proceedings 116. In the meantime, on 1 July 2004 the bailiffs decided to seize 24 subsidiary companies belonging to the applicant company. 117. The applicant appealed against the decision in court. 118. By a first-instance judgment of 17 September 2004 the appeal was dismissed as unfounded. The judgment was produced on 20 September 2004. 119. The applicant did not appeal against the judgment before the Appeal Court, though it did bring further appeal proceedings before the Circuit Court. 120. On 2 February 2005 the judgment was upheld by the Circuit Court. (e) The applicant company’s proposal of 5 July 2004 and related proceedings 121. In addition to the above attempts to stay the enforcement of the judgments concerning the 2000 Tax Assessment, the applicant company, by a letter dated 2 July and filed on 5 July 2004, suggested to the bailiffs for the second time that it repay its debts by using 34.5% of Sibneft stock allegedly worth over 4 billion United States dollars (“USD”, or some EUR 3.3 billion), citing its vertically integrated structure as a possible reason for seeking to find the least intrusive solution as well as the need to honour its contractual debts. 122. The Government provided the following background information in connection with the applicant’s second offer of Sibneft shares (see paragraph 121 above). At this point, the owners of Sibneft had already obtained a court judgment in their favour by the City Court on 1 March 2004, ordering the applicant company to return the 57.5% of Sibneft shares swapped for the cancelled 17.2% of the applicant company’s shares and on 6 July 2004, that is, on the day after the applicant’s second offer, they had filed court claims demanding the return of 14.5% of the shares previously exchanged for 8.8% of the applicant company’s existing shares. In addition, by a decision of 6 July 2004 the owners of Sibneft had obtained an attachment order in respect of the Sibneft shares in question. 123. On 14 July 2004 the applicant company filed an action against the bailiffs on account of their alleged failure to respond to the company’s offer of 5 July 2004. 124. On 17 August 2004 the City Court dismissed this action, having noted that the failure to respond was lawful and within the scope of the bailiffs’ discretion. The court established that some of the steps undertaken by the applicant company during the unsuccessful merger with the Sibneft company had been contested in a different set of proceedings as unlawful. In addition, the applicant company’s ownership of the Sibneft shares had been contested by third parties in two different sets of proceedings. On the basis of these findings, the court concluded that the bailiff had not breached the law by ignoring the company’s offer. 125. It does not appear that the applicant company appealed against the judgment. (f) Default notice of 5 July 2004 126. On 5 July 2004 the applicant company received a default notice from syndicated lenders, a group of international banks, who had previously loaned the company USD 1 billion (EUR 821,894,430). The lenders considered that a default had occurred as a result of the recent and well-publicised events in respect of the applicant company and their actual or potential impact on the applicant company’s business and assets. The notice stated that as a result of the default notice the loans were due and payable on demand. (g) The company’s cassation appeal of 7 July 2004 and the motion to stay the enforcement 127. As set out above (paragraph 67), on 7 July 2004 the applicant company filed a cassation appeal against the court judgments on the 2000 Tax Assessment and at the same time it moved to stay the enforcement proceedings. It argued that its assets were highly valuable, but that it had insufficient cash to honour the debts immediately and that the attachment of assets made any voluntary settlement impossible. The applicant company also argued that enforcement of the court judgments in the case would irreparably damage its business, since a reversal of the enforcement would be impossible. 128. By a decision of 16 July 2004 the Appeal Court agreed to consider the cassation appeal and, having examined the motion to stay the enforcement, dismissed it as unsubstantiated and unfounded, as the circumstances referred to by the applicant company were irrelevant under the domestic law. The court noted that it would be possible to reverse the enforcement, since the plaintiff was the Treasury. 129. This decision was upheld by the Circuit Court on 4 August 2004. (h) 7% enforcement fee 130. By a decision of 9 July 2004 the bailiffs levied an enforcement fee of 7% in respect of the applicant company’s failure to comply with the execution writs of 30 June 2004 (see paragraph 110 above). The applicant company was to pay RUB 6,848,291,175.45 (approximately EUR 190,481,640) 131. On 19 July 2004 the applicant company challenged this decision in court. 132. By a decision of 3 August 2004 the City Court examined the applicant company’s action and quashed the decision of 9 July 2004 as disproportionate and unjustified. The court decided that the enforcement fee could only be levied if the respondent had acted in bad faith and found that the bailiffs had failed to examine this question. The court also noted that 7% was the highest possible rate and that the bailiffs’ decision failed to explain why the fee could not be lower. Among other things, the court referred to section 3 of Constitutional Court Ruling no. 13-P of 30 July 2001. 133. Following an appeal by the Ministry, on 27 August 2004 the Appeal Court quashed the decision of 3 August 2004 as erroneous and held that the bailiffs’ actions had been lawful and justified. The court noted that the applicant company had failed to demonstrate that it had taken any steps to meet the liabilities. It further noted that the cash in the applicant company’s accounts was only frozen in certain specified amounts and that, above those amounts, the company was free to function as usual. As to the company’s proposal to offer the Sibneft shares as payment, the court noted that this could not be accepted, because the applicant company’s property rights in respect of these shares had been questioned by a third party in a parallel set of proceedings. In addition, the court noted that the applicant company had failed to use a remedy provided in Article 324 of the Commercial Procedure Code. 134. The Circuit Court upheld the appeal decision on 6 December 2004. (i) Overall debt in respect of 2000 135. Overall, in respect of 2000, the applicant company was ordered to pay RUB 99,333,836,391 (approximately EUR 2,814,667,452) (j) The applicant company’s proposal of 13 July 2004 and related proceedings 136. On 13 July 2004 the applicant company again repeated its offer of 34.5% of Sibneft shares to the bailiffs. On the next day the offer was amended to include only 20% of Sibneft shares. The domestic courts at three instances analysed this offer in detail in their decisions of 6, 18 August and 25 October 2004 (see paragraphs 139-146 below). (k) Seizure of shares in OAO Yuganskneftegaz (i) Decision of 14 July 2004 137. On 14 July 2004 the bailiffs seized the shares of OAO Yuganskneftegas, one of the applicant company’s principal production subsidiaries. The decision referred to the applicant company’s inability to meet its liabilities. The attachment did not affect the applicant company’s ability to manage OAO Yuganskneftegaz, but rather prevented the company from selling or encumbering those shares. (ii) The applicant company’s challenge to the decision of 14 July 2004 138. The applicant company appealed against this decision in court. With reference to section 59 of the Enforcement Proceedings Act, it argued that the bailiffs ought firstly to claim assets which were not involved in the production process, secondly those goods and other values which were not related to the production process and, thirdly, immovable objects, raw material and other main assets relating to the production cycle. In addition, the applicant company referred to Ruling no. 4 of the Plenary Supreme Commercial Court “On certain questions arising out of seizure and enforcement actions in respect of corporate shares”, dated 3 March 1999, which suggested, in respect of those companies which had been privatised by the State as parts of bigger holding groups through the transfer of controlling blocks of shares, that the production cycle of the respective production unit should be preserved as much as possible. The company further claimed that the above ruling was applicable to the case at issue, that OAO Yuganskneftegas was a major production unit and that the bailiffs had produced no evidence that the assets and goods and other values not involved in the production process were insufficient. In addition, it reiterated its offer of the shares in Sibneft. (iii) First-instance proceedings 139. On 6 August 2004 the City Court examined and allowed the applicant company’s challenge of this seizure. 140. At the hearing the Ministry and bailiffs referred to sections 9 (5) and 51 (1-4) of the Enforcement Proceedings Act and Government Decree no. 934 “On seizure of securities” of 12 August 1998. They argued that, under the applicable domestic law, the seizure should be made first in respect of the cash-flow and then, under section 46 (5) of the Enforcement Proceedings, it would be open to the bailiffs to assess and seize the assets depending on their liquidity. They countered the applicant company’s arguments by saying that the latter’s references were invalid in that they related to the other stage of enforcement proceedings (the collection of debt and not the seizure as such). Furthermore, they argued that Ruling no. 4 of the Plenum of the Supreme Commercial Court was inapplicable since, in the case of Yuganskneftegas, the State had transferred only 38% of the shares and not a controlling block. With regard to the offer of Sibneft stock, the Ministry and bailiffs argued that the applicant company’s rights in respect of these shares had been contested in separate sets of court proceedings and it was therefore risky to accept them as a payment. Lastly, they informed the court that the applicant company had recently hidden the shareholder registers of its three major subsidiaries, OAO Yuganskneftegas, OAO Samaraneftegas and OAO Tomskneft, which, in their view, demonstrated the risk of possible asset-stripping by the applicant company. 141. Having examined the parties’ submissions, the court upheld the applicant company’s arguments. It noted that the applicant company’s references to the applicable domestic law were correct. With regard to the non-controlling block argument, the court noted that at the time of transfer of the shares, 25% of shares were privileged and non-voting. For the remaining 75% of the voting stock, the 38% transferred by the State constituted the controlling block. As regards the offer of shares in Sibneft, the court noted that the exact quantity of the contested shares was unclear and that the bailiffs should find out the exact figures and that they should consider the uncontested shares as a possible means of partial settlement. The court concluded that the decision of 14 July 2004 was unlawful and quashed it. (iv) Appeal proceedings 142. On 9 August 2004 the Ministry challenged the decision of 6 August 2004 on appeal. 143. On 18 August 2004 the Appeal Court quashed the decision, finding that the first-instance court had erred both in law and fact. In particular, the court confirmed that it was up to the bailiffs to choose the most liquid assets and dispose of them with a view to honouring the applicant company’s huge debt. It also noted that Ruling no. 4 of the Plenary Supreme Commercial Court was inapplicable to the case in issue, as the applicant company, in the years following its privatisation, had restructured its initial shareholding in OAO Yuganskneftegaz in 1999 in such a manner as to take those shares outside the scope of the exception provided by Ruling no. 4. (v) Cassation proceedings 144. Following an appeal by the applicant company, on 25 October 2004 the Circuit Court upheld the decision of 18 August 2004. 145. The applicant company’s attempts to bring supervisory review proceedings against this decision proved unsuccessful. 146. The respective complaint was dismissed by a decision of the Supreme Commercial Court dated 17 December 2004. (l) Seizure of shares of OAO Tomskneft-VNK and OAO Samaraneftegaz 147. In addition to seizing the shares of OAO Yuganskneftegaz, on 14 July 2004 the bailiffs also seized the shares of OAO Tomskneft-VNK and OAO Samaraneftegas, the applicant company’s two other principal production units. 148. The applicant company’s complaint against the seizure of OAO Tomskneft-VNK proved unsuccessful. 149. The City Court dismissed its complaint as unfounded on 13 August 2004. 150. The applicant company did not contest that judgment before the Appeal Court. 151. On 5 November 2004 the Circuit Court dismissed the applicant company’s cassation appeal in respect of the judgment of 13 August 2004. The court noted that the seizure was intended to protect the creditor’s claims and that there was no indication that the seizure impeded the production cycle or otherwise disturbed the normal functioning of the company. 152. The company also complained unsuccessfully about the seizure of its shares in OAO Samaraneftegaz. 153. The City Court, acting as a first-instance court, dismissed the appeal on 2 September 2004. 154. The applicant company failed to appeal the judgment before the Appeal Court, although though it did pursue cassation proceedings. 155. On 18 January 2005 the Circuit Court upheld the judgment. (m) The applicant company’s request to the Ministry of Finance dated 16 July 2004 156. On 16 July 2004 the applicant company wrote a letter to the Ministry of Finance, applying for respite or payment in instalments in respect of the sums due. It appears that this letter remained unanswered. The Government submitted that the Ministry of Finance had not had any authority to respond to the request, as the issue of respite and payment in instalment lay within the competence of the courts. 157. On 12 August 2004 the City Court examined the applicant company’s request to re-pay the 2000 Tax Assessment award in instalments and rejected it as unfounded. The court noted, among other things, that the tax debt had resulted from intentional tax evasion by the applicant company and that the conduct of the debtor in court and during the enforcement proceedings demonstrated that it did not intend to pay the debts voluntarily. 158. It does not appear that the applicant company brought any appeal proceedings in respect of this judgment. (n) The applicant company’s offer of 9 August 2004 159. On 9 August 2004 the applicant company offered the bailiffs the 20% stake in Sibneft and shares in fifteen other subsidiary companies as a settlement for its debts, requesting that the bailiffs respond within one day. 160. It appears that the bailiffs responded to the company’s offer on 9 September 2004. It does not appear that the company brought any court proceedings in respect of that response. (o) The Ministry’s response of 22 September 2004 161. It appears that on 22 September 2004 the Ministry responded to four of the applicant company’s letters about the settlement of the debt, rejecting the offers. 162. It does not appear that the company brought any separate court proceedings in this respect. (p) The applicant company’s announcement in respect of the shares in Sibneft 163. On 8 October 2004 the applicant company announced that it would comply with the City Court’s judgment of 1 March 2004, which had cancelled the issue of additional shares in the applicant company, used for the purpose of acquiring Sibneft. The applicant company, acting in compliance with the court order, instructed the registrar to return its 57.5% stake in Sibneft to its former owners. B. Proceedings in respect of the applicant company’s tax liability for the year 2001 1. Tax Assessment 2001 (a) Proceedings before the Ministry 164. On 23 March 2004 the Tax Ministry commenced tax inspection in respect of the applicant company’s activities in 2001. The inspection ended on 30 June 2004 and on 5 July 2004 the Ministry served the resultant report on the applicant company. 165. On the basis of the above-mentioned report, by a decision of 2 September 2004 the Ministry issued a tax assessment for the year 2001 (“the 2001 Tax Assessment”), finding the company liable for having used essentially the same tax arrangement as in the previous year. The Tax Assessment 2001 relied on a similarly wide range of evidence as the Tax Assessment 2000, including the documentary evidence and detailed statements of those involved in the nominal ownership and running of the trading companies. This time the applicant company had to pay RUB 50,759,436,900 (approximately EUR 1,424,746,313) in tax arrears, RUB 28,520,204,254 (approximately EUR 800,522,195) in default interest and RUB 40,607,549,520 in penalties (approximately EUR 1,139,797,051). Since the applicant company had recently been found guilty of a similar offence, the penalty was doubled. (b) The applicant company’s request for a court injunction 166. On 14 September 2004 the applicant company lodged an appeal against the decision of 2 September 2004 and requested an injunction against the immediate enforcement of this decision. 167. On 5 October 2004 the City Court turned down the request for an injunction and on 13 October 2004 it issued execution writs in respect of the Ministry’s decision of 2 September 2004. The court referred to Information Letter no. 83 of the Supreme Commercial Court of 13 August 2004, which recommended that requests for interim measures in such situations be granted only if an applicant could demonstrate some security for a creditor’s future claims. The court noted that, in the present case, the applicant company clearly had insufficient cash to satisfy the creditor’s claims, and had failed to produce any security, and dismissed the claims accordingly. 168. The judgment of 5 October 2004 was upheld by the Appeal Court on 3 December 2004 and by the Circuit Court on 29 March 2005. 2. Enforcement measures relating to the 2001 Tax Assessment (a) Enforcement of additional taxes and interest surcharges 169. As the 2001 Tax Assessment was similar to the 2000 Tax Assessment, the Ministry decided to enforce it directly in the part relating to additional taxes and interest surcharges, without taking the matter to the courts. The applicant company was to pay the amounts due by 4 September 2004. 170. On 9 September 2004 the bailiffs instituted enforcement proceedings in connection with the decision of 2 September 2004. The company was to pay RUB 50,759,436,900 (approximately EUR 1,424,746,313) in tax arrears and RUB 28,520,204,254 (approximately EUR 800,522,195) in default interest. 171. It appears that the 2001 Tax Assessment, in the part relating to additional taxes and interest surcharges, was upheld by the City Court on 11 October 2004. The judgment of 11 October 2004 was upheld on appeal on 16 February 2005. The Circuit Court upheld the decisions of the lower courts on 9 December 2005. 172. The applicant company’s request for an injunction pending those proceedings was unsuccessful. The City Court dismissed it in its judgment of 5 October 2004. The refusal was upheld by the Appeal Court on 3 December 2004 and by the Circuit Court on 29 March 2005. (b) Enforcement of penalties 173. On 3 September 2004 the Ministry applied to the City Court to recover the penalties arising from the 2001 Tax Assessment.. 174. It appears that on 11 October 2004 the action was examined and granted by the City Court. The judgment in the case was produced on 15 October 2004. 175. According to the applicant company, its appeal against the judgment of 15 [3] October 2004 was dismissed by the Appeal Court on 18 November 2004. It appears that the Circuit Court upheld these two decisions on 15 November 2005. 176. On 19 November 2004 the bailiffs instituted enforcement proceedings in respect of the Tax Assessment 2001 in the part relating to penalties. The company was to pay RUB 39,113,140,826 in penalties (approximately EUR 1,097,851,399) [4]. (c) 7% enforcement fee in respect of additional taxes and interest surcharges 177. On 20 September 2004 the bailiffs decided to impose a 7% enforcement fee in respect of the applicant company’s failure to abide by the 2001 Tax Assessment in the part relating to taxes and interest surcharges. The applicant company was to pay RUB 5,549,574,880.78 (approximately EUR 155,693,193). 178. The resolution was served on the applicant company on 1 October 2004. 179. On 29 October 2004 the City Court examined and dismissed the challenge to the decision of 20 September 2004 as groundless. 180. It does appear that the company pursued appeal proceedings. 181. On 1 December 2004 the company appealed in cassation against the judgment of 29 October 2004. 182. The appeal was dismissed by the Circuit Court on 3 March 2005. (d) 7% enforcement fee in respect of penalties 183. On 9 December 2004 the bailiff decided to impose a 7% enforcement fee in respect the applicant company’s failure to abide by the 2001 Tax Assessment in the part relating to penalties. The company was to pay a 7% enforcement fee of RUB 7,102,488,295 or approximately EUR 190,077,377. 184. On 23 December 2004 the company challenged this decision in court. 185. On 3 February 2005 the City Court dismissed the action. 186. The applicant company failed to appeal the judgment of 3 February 2005. 187. The Circuit Court upheld the judgment of 3 February 2005 on 16 June 2005. (e) Overall debt in respect of 2001 188. Overall, in respect of 2001 the applicant company was ordered to pay RUB 132,539,253,849.78 (approximately EUR 3,710,836,129). C. Proceedings in respect of the applicant company’s tax liability for the year 2002 1. Tax Assessment 2002 189. On 29 October 2004 the Ministry produced an audit report in respect of the applicant company’s activities for the year 2002. The report was received by the company on 1 November 2004. 190. On 16 November 2004 the Ministry took a decision to levy further tax liabilities, this time in respect of the year 2002 (“the 2002 Tax Assessment”). The applicant company was to pay RUB 90,286,552,485 (approximately EUR 2,425,825,387) in taxes, RUB 31,485,110,355.58 (approximately EUR 845,944,140) in default interest and RUB 72,040,907,796 (approximately EUR 1,935,600,133) in penalties. 191. The decision established the use of the same tax-evasion scheme (in respect of profit tax, VAT, corporate property tax and motorway users’ tax) as in the decisions concerning the years 2000 and 2001. It mentioned that the company had carried out its activities through OOO Ratmir, OOO Alta-Treid, ZAO Yukos-M, OOO Yu-Mordoviya, OOO Ratibor, OOO Petroleum treyding, OOO Evoyl, OOO Fargoyl, most of which had also been used by the applicant company in previous years. The entities in question, acting in breach of Article 575 of the Civil Code, which prohibits grants and gifts between independently functioning commercial entities, had transferred the entirety of their profits unilaterally to a fund owned and controlled by the applicant company. The decision mentioned that the transfers had been wrongly reflected in the applicant company’s financial accounting and that the company had failed to explain the origin of these funds and had failed to take these sums into account for tax purposes. Accordingly, the applicant company had failed to pay taxes in respect of these amounts. 192. The decision referred to several other mistakes in the applicant company’s tax declarations. In particular, the tax in respect of the company’s securities transactions was wrongly calculated, there were many general mistakes in the company’s financial accounting, and there were some mistakes in the company’s request for reimbursement of the VAT on export operations (e.g. on one occasion the company failed to submit the required sales contract; it also mentioned one contract but received the money on the basis of a different contract; on some occasions the company failed to submit documents proving customs clearance, indicated wrongly calculated sums, and made multiple mistakes in VAT export documents). There were further multiple mistakes in tax deductions in respect of internal VAT. 193. The decision also established that the applicant company had used sham entities to lower its group taxes, that the entities and the company’s subsidiaries had entered into transactions with reduced prices, that on some occasions the company had declared the extracted oil as “hydrocarbon liquid” in order to lower the applicable price even further, that there were no cash transactions between the entities and subsidiaries and that the company’s own promissory notes and mutual offsetting had been used instead and that the whole set-up, which had no economic purpose other than tax evasion, had resulted in massive tax evasion by the applicant company. The decision also noted that use of tax concessions in the Republic of Mordoviya and the Evenk Autonomous District by the sham entities had been unlawful, because they had failed to qualify for the exemptions and also because they had been sham companies. The decision was detailed in respect of the composition and all the activities of the sham entities: the Ministry analysed the entirety of their activities month by month. 194. The applicant company had until 17 November 2004 to meet the debts voluntarily. 2. Enforcement measures relating to the 2002 Tax Assessment (a) Enforcement of additional taxes, interest surcharges and penalties 195. By a decision of 18 November 2004 bailiffs proceeded to enforcement of the decision of 16 November 2004 in so far as it related to additional taxes and interest surcharges. 196. The City Court joined the proceedings by which the applicant company tried to contest the decision of 16 November 2004 and on 23 December 2004 it examined and, in the most part, dismissed the applicant company’s appeals against the decision of 16 November 2004. The court declared the Ministry’s conclusions partly unfounded and reduced the company’s tax liability by RUB 325,628,742 (approximately EUR 8,752,543), its default interest payments by RUB 98,515,758 (approximately EUR 2,647,995) and the penalty by RUB 851,419,688 (approximately EUR 22,885,227). The court also ordered the applicant to pay the penalty in question. 197. This decision was upheld by the Appeal Court on 5 March 2005 and the Circuit Court on 30 June 2005. 198. On 28 December 2004 the applicant company also appealed against the Ministry’s decision in respect of the year 2002, in so far as it had ordered that the tax debts and default interest payments be collected directly. 199. It appears that on 7 February 2005 the City Court examined and dismissed the claim as unfounded. The judgment was upheld on appeal on 4 April 2005. The Circuit Court upheld the decisions of the lower courts on 15 June 2005. (b) 7% enforcement fee in respect of additional taxes and interest surcharges 200. On 9 December 2004 the bailiffs decided to impose a 7% enforcement fee in respect of the applicant company’s failure to comply voluntarily with the 2002 Tax Assessment in the part relating to additional taxes and surcharge interests. 201. On 23 December 2004 the company appealed against this decision in court, initially claiming that the decision had been unlawful and asking to reduce the fee to 1%. The company then withdrew its claim in the part relating to the reduction of the fee. 202. On 10 February 2005 the City Court judgment dismissed the appeal. 203. It does not appear that the company brought any proceedings before the Appeal Court in respect of the judgment. 204. The applicant company’s cassation appeal was examined and dismissed by the Circuit Court on 16 June 2005. (c) Overall debt in respect of 2002 205. Overall in respect of the year 2002 (excluding the 7% enforcement fee), the applicant company was ordered to pay RUB 192,537,006,448.58 (approximately EUR 4,344,549,434). (d) Written information report communicated by ZAO PricewaterhouseCoopers Audit to the applicant company’s management in respect of the year 2002 206. In their observations of 15 April 2005 the Government submitted a copy of a report communicated to the applicant company’s management by its auditor ZAO PricewaterhouseCoopers Audit. The applicant company did not comment on the contents of the report. 207. In contrast to “ordinary” audit reports, which were made public, the internal information report was produced exclusively for the applicant company’s management. 208. The report noted specifically that the applicant company’s “Fund for Financial Support of the Production Development of OAO Neftyanaya Kompaniya YUKOS” was in breach of the domestic law in that the relevant legislation disallowed unilateral transfers and gifts between commercial entities. It also noted that the applicant company’s accounting policy in respect of the operations involving promissory notes had been incompatible with the legislation in force and provided a distorted view of the company’s activities. 209. In addition, on 15 June 2007 the applicant company’s auditor, ZAO PricewaterhouseCoopers Audit, disavowed its audit certifications in respect of the applicant company’s financial statements for the years 1995-2004 on account of the applicant company’s deliberate attempts to conceal its tax-evasion scheme, as well as its failure to disclose all relevant documents during the respective inspections conducted by the company’s auditors at the time. D. Proceedings in respect of the applicant company’s tax liability for the year 2003 1. Tax Assessment 2003 210. On 28 October 2004 the Tax Ministry commenced a tax inspection in respect of the year 2003, which resulted in an audit report that was dated 19 November 2004 and served on the applicant company on the same date. 211. On the basis of the report, by a decision of 6 December 2004 the Ministry levied tax liabilities for the year 2003 (“the 2003 Tax Assessment”), consisting of RUB 86,228,187,852 (approximately EUR 2,327,114,103) in taxes, RUB 15,235,930,657.66 (approximately EUR 411,185,136) in default interest and RUB 68,939,326,976.40 (approximately EUR 1,860,524,778) in penalties. 212. The decision established that the company was guilty of having evaded taxes (in particular, VAT, profit tax and advertising tax) by using the same arrangement as in previous years. The decision mentioned the following entities registered either in the Republic of Mordoviya or the Evenk Autonomous District: OOO Yu-Mordoviya, ZAO Yukos-M, OOO Alta-Treyd, OOO Ratmir, OOO Energotreyd, OOO Makro-Treyd, OOO Fargoyl, and OOO Evoyl. It was alleged that the entities were sham and that they had made unilateral transfers to the applicant company, in breach of Article 575 of the Civil Code, that the applicant company had failed to reflect the transferred amounts as its profits, to account for them and to pay taxes in this connection and that the company had used lowered prices to avoid the payment of taxes. The decision contained a detailed contract-by-contract analysis of the sham entities’ transactions. 213. The decision also mentioned that some of the applicant company’s expenses were unjustifiably deducted from the company’s taxable income, that the company failed to account for some of its operations with promissory notes, that there were some mistakes in calculation of the VAT owed by the company and that the company had evaded payment of advertising tax in Moscow. 214. The applicant company had one day to comply with the decision, that is, until 7 December 2004. 2. Enforcement measures relating to the 2003 Tax Assessment (a) Enforcement of additional taxes, interest surcharges and penalties 215. On 9 December 2004 the bailiffs proceeded to enforcement of the decision of 6 December 2004 in so far as it related to taxes and interest surcharges. 216. It appears that the City Court joined the proceedings by which the applicant company tried to contest the decision of 9 December 2004 and on 28 April 2005 it examined the company’s challenge. In respect of the company’s request to recalculate automatically the export VAT on operations conducted by the sham entities in the course of these proceedings, the court noted the request was unsubstantiated and also lodged out of time. In particular, the company had failed to submit a proper claim with monthly calculations and evidence that the goods in question had indeed been exported. The court also addressed the applicant company’s argument that Article 75 (3) of the Tax Code prevented the authorities from levying the interest surcharges. It noted that the provision in question only applied to cases in which the sole reason for the taxpayer’s inability to pay tax debts was the seizure of its assets and cash funds. On the facts, the applicant company was unable to pay because it had insufficient funds and not because its assets were frozen. The court concluded that the applicant company’s argument was unfounded. The court also reduced the amount of additional taxes to be paid to RUB 86,221,835,476.37 (EUR 2,399,884,085) and the amount of fines to RUB 68,918,264,491 (EUR 1,918,259,397). The amount of interest surcharges was reduced accordingly. The exact figure of the interest surcharges to be paid by the applicant is unclear. 217. The judgment was upheld on appeal on 16 August 2005. 218. The applicant company appealed on cassation. 219. On 5 December 2005 the Circuit Court upheld the decisions of the lower courts. 220. The bailiffs instituted enforcement proceedings in respect of the payment of fines on 4 October 2005. (b) 7% enforcement fee 221. On 17 March 2006 the bailiffs decided to impose a 7% enforcement fee in respect of the applicant company’s failure to comply voluntarily with the 2003 Tax Assessment. The applicant company was to pay RUB 7,102,488,296 (EUR 211,872,906) in respect of the unpaid reassessed taxes and interest surcharges and RUB 4,824,278,304 (EUR 143,912,080) in respect of the unpaid fines. (c) Overall debt in respect of the year 2003 222. Overall, in respect of 2003 (excluding the 7% enforcement fee and the interest surcharges, the exact amount of which is unclear) the applicant company was ordered to pay RUB 155,140,099,967.37 (approximately EUR 4,318,143,482). E. Forced auctioning of OAO Yuganskneftegaz 223. On 20 July 2004 the Ministry of Justice announced the forthcoming evaluation and sale of OAO Yuganskneftegaz as a part of its ongoing enforcement procedures. 224. On 22 July 2004 the applicant company announced that: “...the company management [is] currently making every effort to raise additional funds in order to repay, as soon as possible, the tax liability and to finance current operations. However, should those efforts prove unsuccessful and Yuganskneftegaz [be] sold, in the present circumstances, the management of the Company would be compelled to announce the bankruptcy of Russia’s largest oil company”. 1. Valuation report of 17 September 2004 225. On 17 September 2004 the valuation commissioned by the bailiffs and the Ministry of Justice from Dresdner Kleinwort Wasserstein, the investment branch of Dresdner Bank AG (working in Russia as ZAO Dresdner bank), for the purposes of the enforcement proceedings, estimated that 100% of shares in OAO Yuganskneftegas were worth between USD 15.7 and 18.3 billion ( between EUR 15.2 and 17.7 billion ), excluding the pending and probable tax liabilities of this entity. 226. The report evaluated 100% of the price of OAO Yuganskneftegaz as a separate entity and, having deduced its corresponding obligations, calculated the cost of its shares, on the basis of which it would be possible to calculate the price of one share in OAO Yuganskneftegaz. 227. It was specifically mentioned in the report that the valuation was not an opinion concerning the attainable price in the event of the sale of OAO Yuganskneftegaz or any kind of recommendation concerning the starting bid of the auction in the event of the sale of Yuganskneftegaz by the Ministry of Justice or any other State institution, or any recommendation concerning particular actions to be undertaken by the Ministry of Justice with a view to levying the judicially determined or estimated amount of the applicant company’s tax debt. 228. Among the basic risks affecting the price of OAO Yuganskneftegaz, the report mentioned the tax claims, the validity of oil extraction licences, future oil prices, export quotas etc. The report also mentioned that the price of OAO Yuganskneftegaz as a part of the applicant company could be substantially different from the price of OAO Yuganskneftegaz as a separate entity. The report also mentioned various valuations of OAO Yuganskneftegaz made by third parties, including investment institutions and banks, and ranging from USD 9 to 22 billion (between EUR 7.4 to 18.1 billion). It also mentioned that, because of the size of OAO Yuganskneftegaz, not many buyers would be financially capable of acquiring it. 229. The valuation (between USD 15.7 and 18.3 billion or EUR 15.2 and 17.7 billion ) did not take account of already pending and probable tax claims against OAO Yuganskneftegaz. If and when lodged, these claims would “substantially influence the assessment” of the equity of OAO Yuganskneftegaz. The claims already announced (as on that date) were USD 951.3 million. 230. In carrying out the valuation, the report used the following three methods: the method of discounted cash flows, a method based on the analysis of comparable transactions, and a method based on the analysis of comparable publicly-held companies. 231. The report also specifically noted that: “...the decision concerning the starting bid of the auction is a tactical one and should strike a balance between the desire to reach the highest price on the one hand, and the need to attract the maximum number of potential buyers on the other. Because of this, the starting bid is most likely to be different from the assessment of the price.” 2. Service of the valuation report on the applicant company on 13 October 2004 232. A copy of the valuation report was served on the applicant company on 13 October 2004. 233. It does not appear that the applicant company contested the report’s valuations report before the courts. 234. On 21 October 2004 the bailiffs confirmed to the Ministry that they had collected 79,584,690,127 RUB (approximately EUR 2,183,447,331). 3. The applicant company’s reply of 4 November 2004 235. On 4 November 2004 the applicant company responded to the valuation report. It disagreed with the decision to evaluate and sell OAO Yuganskneftegaz, and would have preferred to sell its other assets first. The applicant company informed the bailiffs that it had already honoured a major part of the debt (apparently referring to its tax liability for the year 2000 only) and that the remaining sum was USD 2.5 billion (around EUR 2 billion). The company claimed that it would be more reasonable to lift the seizure and let it dispose of its minor assets in order to honour the remaining debt. 236. As regards OAO Yuganskneftegas, the company referred to independent valuations by JP Morgan PLC, valuing the subsidiary at “no less than USD 14 billion (some EUR 11 billion)” and “between USD 16.1 billion (EUR 12.6 billion) and USD 22.1 billion (EUR 17.378 billion), including tax liabilities” respectively. 237. The letter mentioned that the Ministry had brought tax claims against OAO Yuganskneftegaz totalling USD 2.903 billion. 4. The bailiffs’ decision of 18 November 2004 238. On 18 November 2004 the bailiffs noted that the applicant company’s debt to the Ministry on that date was RUB 204,902,386,620 (approximately EUR 5,506,781,584 or USD 7,147,250,717). Having referred to sections 4, 46 (6), 54 (2) and 88 of the Enforcement Proceedings Act, the bailiffs decided to sell 76.79 % of the shares in OAO Yuganskneftegas at an auction which would take place on 19 December 2004. The published minimum bidding price for 76.79 % of the shares in OAO Yuganskneftegas was RUB 246,753,447,303.18 (approximately USD 8.65 billion or EUR 6.63 billion). 239. The sale was entrusted to the Russian Fund of Federal Property (“the Property Fund”), a specialised State Institution in charge of organising sales of federal property and the property of those who had debts towards the State. 240. On the same date, the Property Fund issued a regulation setting out the parameters and rules that would govern the auction, including the number of shares to be sold (43 ordinary shares representing 76.79% of the capital of OAO Yuganskneftegaz), the starting price (RUB 248.6 billion or some USD 8.85 billion), the date and place of the auction (19 December 2004), the eligibility requirements for bidders (the auction was open to all perspective bidders, including foreign individuals and legal entities), which included a cash deposit of RUB 49.4 billion (USD 1.7 billion, or 20% of the starting price), to be paid no later than the day before the auction. 5. Court action against the decision of 18 November 2004 241. The decision of 18 November 2004 was challenged in court on 26 November 2004. 242. It appears that on 3 December 2004 the City Court dismissed the appeal against the decision of 18 November 2004. 243. On 21 January and 3 May 2005 that judgment was upheld on appeal and in cassation respectively. 244. The applicant company argued that the valuation report had failed to give a market valuation of the asset and that the decision of 18 November 2004 failed to mention a specific price for OAO Yuganskneftegaz. In response, the courts noted that 43 ordinary and 13 privileged shares in OAO Yuganskneftegaz had been seized by the bailiffs in satisfaction of the applicant company’s liability, that the shares had been valued by ZAO Dresdner Bank and that the applicant company had been informed of all of the bailiffs’ actions in the course of the enforcement proceedings. They also noted that the seizure of shares in OAO Yuganskneftegaz had previously been declared lawful, that the applicant company had been properly notified of all of the steps taken by the bailiffs in the course of the enforcement proceedings and could bring court proceedings against them, that the valuation by ZAO Dresdner Bank had not been contested by the applicant in accordance with the special procedure provided for by the legislation in force, and that the bailiffs had properly indicated the amount of the applicant company’s debt and requested the Fund to sell the amount of shares necessary to satisfy the debt. 6. Announcement about the sale of OAO Yuganskneftegaz 245. In the meantime, on 19 November 2004, the Russian Gazette, an official Government newspaper, published an announcement about the sale of 76.79% of shares in OAO Yuganskneftegaz at a public auction organised by the Property Fund. The only two conditions for participating in the auction were to file an application between 19 November and 18 December 2004 and to make a deposit payment. 246. On 10 December 2004 OOO Gazpromneft, ZAO Intercom and OAO First Venture Company filed applications with the Federal Antimonopoly Service and thus were expected to bid at the auction. 247. The media reported that OAO Gazprom, a parent company of OOO Gazpromneft, had begun negotiating a financing arrangement with a consortium of international banks to finance its bid at the auction. It was also reported that a number of non-Russian companies, such as ENI, Chevron Texaco, China National Petroleum Corporation and E.ON, had expressed interest in participating in the auction. 248. On 17 December 2004 the bailiffs noted that the applicant company’s consolidated debt on that date, regard being had also to the 2001 Tax Assessment, was RUB 344,222,156,424.22 (EUR 9,210,844,560.93, or USD 12,365,545,256.86). 7. The applicant company’s application for bankruptcy in the United States of America and its request for injunctive relief (a) Filing of bankruptcy petition and request for injunctive relief 249. On 14 December 2004 the applicant company filed a voluntary petition under Chapter 11 of the U.S. Bankruptcy Code in the U.S. Bankruptcy Court for the Southern District of Texas, Houston Division (“the U.S. Bankruptcy Court”). 250. Simultaneously, the applicant company filed a request for injunctive relief, pursuant to section 105 of the U.S. Bankruptcy Code in order, among other things, to enforce the automatic stay set out in section 362 (a) of the Bankruptcy Code by enjoining certain parties from participating in the Yuganskneftegaz Auction. The request was directed specifically against “... defendants the Russian Federation, OOO Gazpromneft, ZAO Intercom, OAO First Venture Company, ABN Amro, BNP Paribas, Calyon, Deutsche Bank, JP Morgan and Dresdner Kleinwort Wasserstein ...”. (b) Scope of automatic stay 251. Under U.S. law, an automatic stay went into immediate effect when the applicant company filed for bankruptcy. The automatic stay protected the company’s assets by preventing the creditors from collecting claims that arose prior to the bankruptcy filing or from taking “possession” or “control” of the applicant company’s property covered under the filing. (c) Temporary restraining order of 16 December 2004 252. On 16 December 2004, having examined the applicant company’s request, the U.S. Bankruptcy Court issued a temporary restraining order barring certain specific entities from taking any actions with respect to the shares in OAO Yuganskneftegaz, including participation in the auction. Among other things, Judge Letitia Z. Clark stated the following: “... The court is mindful of the need for deference to the judicial determination of another jurisdiction. This is ... of exceptional importance when it involves that of agencies of another sovereign state. However, in the instant case, the [applicant company] has made a showing that it needs a short additional time to hold its shareholder meeting scheduled for December 20, 2004 and may elect to file for bankruptcy under Russian law in order to proceed with a more orderly adjustment of its assets and debts in accordance with Russian law or to continue to seek international arbitration ...”. 253. The entities mentioned in the order were (a) the three companies registered to bid at the Auction, including OOO Gazpromneft, ZAO Intercom and OAO First Venture Company, (b) six western financial institutions that had announced their intention to fund OOO Gazpromneft’s bid at the auction (ABN Amro, BNP Paribas, Calyon, Deutsche Bank, JP Morgan and Dresdner Kleinwort Wasserstein) and (c) those persons in active concert or participation with them. (d) Outcome of the bankruptcy proceedings in the U.S. 254. On 24 February 2005 the U.S. Bankruptcy Court dismissed the applicant company’s petition for bankruptcy with reference to section 1112 (b) of U.S. Bankruptcy Code which gave the court discretion to dismiss a case “in the best interest of the creditors and the estate”. 255. The court noted that most of the applicant company’s assets were oil and gas within Russia, so that the court’s ability to carry out a re-organisation without the cooperation of the Russian government was extremely limited, that the applicant company sought to substitute U.S. law in place of Russian, European Convention and/or international law, that the applicant company had commenced proceedings in other fora, including the European Court of Human Rights, and the court did not feel that it was uniquely qualified or more able that these other fora to consider the issues presented. Lastly, the court noted that the vast majority of the business and financial activities of the applicant company continued to occur in Russia and that the applicant company was one of the largest producers of petroleum products in Russia. The court held that “the sheer size of [the applicant company] and its impact on the entirety of the Russian economy weighs heavily in favour of allowing resolution in a forum in which participation of the Russian government is assured”. 8. Auction of 19 December 2004 256. On 19 December 2004 the Property Fund auctioned 76.79% of the shares in OAO Yuganskneftegaz. It appears that media reporters were able to attend the auction. 257. There were two participants in the auction, OOO Baykalfinansgrup and OOO Gazpromneft. OOO Baykalfinansgrup, the only bidder in the auction, made two bids, first of USD 8.65 billion and then of RUB 260,753,447,303.18 (USD 9.4 billion or EUR 7.05 billion). It appears that whilst taking part in the auction OOO Gazpromneft was prevented from bidding by the injunction of 16 December 2004 (see paragraph 253 above ). 9. The decisions and reports concerning the outcome of the auction 258. On 21 December 2004 the Ministry of Justice issued a report accepting that the Property Fund had properly carried out the services due under the contract of 18 November 2004. 259. On 21 December 2004 the Property Fund publicly reported the sale of the shares in OAO Yuganskneftegaz. 260. On 31 December 2004 the bailiffs issued a resolution confirming the results of the auction. The resolution stated that OOO Baykalfinansgrup had won the auction for 43 shares in OAO Yuganskneftegaz (76.79% of its stock) for RUB 260,753,447,303.18 (approximately EUR 6,896,341,940 or USD 9,396,960,842). By the time that resolution was issued, the money had already been transferred to the bailiffs. 10. Takeover of OOO Baykalfinansgrup by OAO Rosneft 261. According to press reports of 31 December 2004, OAO Rosneft, a State-owned oil company, acquired OOO Baykalfinansgrup and thus took control of OAO Yuganskneftegas. 262. In its consolidated financial statements 2003-2005, dated 15 May 2005,OAO Rosneft declared: “... In late December 2004 [OAO Rosneft] acquired a 100% interest in [OOO Baykalfinansgrup], which a few days earlier had won an auction for the sale of a 76.79% interest in [OAO Yuganskneftegaz], which represents 100% of the common shares of [OAO Yuganskneftegaz]. ...” 11. Court proceedings in connection with the auction 263. It appears that on 26 May 2005 the applicant company filed an action in the City Court against the Property Fund, OOO Baykalfinansgrup, OAO Rosneft, OOO Gazpromneft, OAO Gazprom and the Ministry of Justice, seeking to annul the auctioning of 43 shares in OAO Yuganskneftegas and the deed of sale. It also claimed damages in excess of RUB 324 billion. 264. The action was examined and dismissed by the City Court on 28 February 2007. The court decided that both the Ministry of Justice and the Property Fund [5] had acted within their statutory powers, that the auction procedure had been fully complied with and that the applicant company’s allegation about the auction participants acting in concert had been unsupported by any evidence. 265. The judgment was upheld by the Appeal Court on 30 May and by the Circuit Court on 12 October 2007. 266. On 27 January 2005 the applicant company also initiated parallel proceedings against OAO Rosneft, OOO Baykalfinansgrup, Deutsche Bank AG, Deutsche Bank AG London, Deutsche Bank Luxembourg S.A., Deutsche Bank Trust Company Americas and the Russian Federation before the U.S. Bankruptcy Court for violation of the automatic stay. 267. The applicant company voluntarily withdrew the entire proceedings on 28 March 2005, after its bankruptcy petition was dismissed by the U.S. Bankruptcy Court. F. Bankruptcy proceedings 268. It does not appear that any enforcement measures took place in respect of the applicant company after the auctioning of OAO Yuganskneftegaz until September 2005. 269. On 8 September 2005 a consortium of foreign banks represented by the French bank Société Générale (“the banks”) filed an application with the City Court for recognition and enforcement of an English High Court judgment ordering the applicant company to re-pay the contractual debt of USD 482 million (around EUR 385 million), resulting from the applicant company’s default under a USD 1 billion loan agreement dated 24 September 2003. 270. On 22 September 2005, at the banks’ request, the bailiffs again attached the applicant company’s property. 271. In October 2005 the applicant company challenged this order. 272. On 30 November 2005 the City Court dismissed the appeal as groundless. 273. The first-instance judgment was upheld by the Appeal Court and by the Circuit Court on 27 February and 12 May 2006 respectively. 274. In the meantime, on 28 September 2005, the City Court allowed recognition and enforcement of the English High Court judgment. 275. On 5 December 2005 the Circuit Court granted the applicant company’s cassation appeal and quashed the judgment of 28 September 2005. It remitted the case for a fresh hearing. 276. On 21 December 2005, having re-examined the case, the City Court allowed the banks’ claims. 277. On 25 January 2006 the applicant company appealed against the judgment of 21 December 2005. 278. On 2 March 2006 the Circuit Court dismissed the appeal. 279. It appears that on 13 December 2005 the banks reached an agreement with the Rosneft company to sell to the latter the applicant company’s debt to the banks. 280. On 6 March 2006 the banks lodged a petition with the City Court to declare the applicant company bankrupt. 281. On 9 March 2006 bankruptcy proceedings were initiated against the applicant company upon the banks’ petition. It appears that the Ministry decided to join the proceedings as one of the bankruptcy creditors in respect of remaining tax debts of the 2000-2003 Tax Assessments still owed by the applicant company. 282. On 14 March 2006 the banks notified the City Court about the decision to sell the debts owed by the applicant company to Rosneft. 283. On 29 March 2006 the City Court substituted Rosneft in the place of the banks as a bankruptcy creditor. By the same decision the court imposed a supervision order on the applicant company and appointed Mr Eduard Rebgun as the applicant company’s interim receiver. It also prohibited the company’s management from disposing of any of its property exceeding RUB 30 million in value. 284. On 6 and 7 April 2006 the applicant company appealed against the decision of 29 March 2006 on all three points. 285. On 27 April 2006 the Appeal Court dismissed the appeals. 286. On 21 June 2006 the applicant company appealed against the lower courts’ decisions to the Circuit Court. The outcome of these proceedings is unclear. 287. On 21 April 2006 the Ministry submitted a claim to the City Court, seeking to be included in the list of the applicant company’s creditors for the amount of 353,766,625,235.66 RUB (approximately EUR 10,435,809,153), along with 2,118 pages of documentation. The claim was based on the company’s reassessed tax liability for the year 2004. 288. In June 2006 the City Court made a number of rulings concerning the formation of the list of creditors. In particular, on 1 and 7 June 2006 the City Court held hearings on the claim. On 14 June 2006 the final hearing of the claim was held. The court allowed the claims in its entirety and dismissed the application for stay. 289. On 21 June 2006 the City Court delivered a full version of the judgment of 14 June 2006. It decided to include the Ministry in the list of the applicant company’s creditors for the amount claimed and refused to stay the proceedings. 290. On 3 and 6 July the applicant company appealed against the judgment of 14 June 2006 concerning the allowed claims. 291. On 4, 7 and 11 August 2006 the Appeal Court heard the applicant company’s arguments. 292. On the latter date the Appeal Court dismissed the applicant company’s appeal. 293. It appears that on 18 August 2006 the Appeal Court delivered a full version of the appeal decision. 294. On 25 July 2006 the Committee of Creditors rejected the rehabilitation plan offered by the management and recommended the applicant company’s liquidation. 295. On 31 July 2006 the applicant company appealed against this decision. 296. On 4 August 2006 the City Court examined the applicant company’s situation, declared that the company was bankrupt and dismissed its management. The court appointed Mr E. Rebgun as the applicant company’s trustee. It also refused the company’s request to stay the proceedings. 297. Both parties appealed on 15 August 2006 298. The judgment was upheld on appeal and entered into force on 26 September 2006. 299. It appears that on 22 August 2006 Mr E. Rebgun, acting as the trustee in the company’s bankruptcy proceedings, revoked the authority of all counsel appointed by the applicant company’s previous management, including Mr P. Gardner. 300. On 23 October 2006 Mr E. Rebgun appointed a consortium of independent appraisers led by ZAO Roseko (“the consortium”), selected through an open tender, to inventory and evaluate the applicant company’s assets with a view to auctioning them. 301. The consortium carried out its evaluation from October 2006 to July 2007. 302. From 27 March to 15 August 2007 Mr E. Rebgun held 17 public auctions at which all of the applicant company’s assets were sold in line with the evaluations which had been made earlier by the consortium. The aggregate proceeds amounted to over RUB 860 billion (around USD 33.3 billion). The assets sold included a 20% stake in OAO Sibneft (sold, along with 12 fully owned subsidiaries, blocks of shares in 5 more entities and some exchange notes, for RUB 151.536 billion, or some EUR 4.387 billion), 9.44% of shares of OAO Rosneft (sold, along with 12 exchange notes of OAO Yuganskneftegaz, for RUB 197.840 billion, or some EUR 5.728 billion) and scores of the company’s subsidiary companies. 303. By a decision of 12 November 2007, the full version of which was produced on 15 November, the City Court examined the applicant company’s situation, heard the report by Mr E. Rebgun and decided to terminate the liquidation proceedings. The applicant company ceased to exist, leaving over RUB 227.1 billion (around USD 9.2 billion) in unsatisfied liabilities. 304. On 21 November 2007 a certificate was issued to the effect that the applicant company had been liquidated on the basis of the court decision. 305. It appears that a company Glendale Group Limited and Yukos Capital S.A.R.L. contested the decision of 12 November 2007 before the Appeal Court. The appeal of Glendale Group was declared inadmissible for the failure to submit it on time, whilst the appeal of Yukos Capital S.A.R.L. has been accepted for examination. The hearing in this respect was scheduled by the Appeal Court on 19 November 2007. 306. The outcome of these proceedings remains unclear. I. Price adjustment mechanism of the Tax Code 396. Under Article 40 (2) of the Tax Code, the tax authorities are empowered to overrule the above presumption by verifying and correcting the prices for taxation purposes. A finding that the prices were lowered usually leads to the conclusion that the taxpayer understated the taxable base and thus failed properly to pay his taxes (see Article 122 of the Tax Code below). 397. This may happen only (1) when the parties are interdependent within the meaning of Article 20 of the Tax Code; (2) in the event of barter transactions, or; (3) international transactions; (4) when the prices set by a taxpayer during the same short period for certain identical types of goods, work or services fluctuate by more than 20%. 398. Article 20 (1) of the Tax Code defines interdependent parties as natural persons and (or) organisations whose mutual relations may influence the terms or economic results of their respective activities or the activities of the parties that they represent. In particular, (a) one organisation has a direct and (or) indirect interest in another organisation, and the aggregate share of such interest is more than 20%. The share accounted for by the indirect interest held by one organisation in another, through a chain of separate organisations, is defined as the product of the direct interest shares that the organisations in this chain hold in one another; (b) one natural person is subordinate to another natural person ex officio; (c) in the case of individuals, they are spouses, relatives, adopters or adoptees, guardians or wards under the family law of the Russian Federation. 399. Article 20 (2) of the Tax Code provides that the court may recognize persons as interdependent on other grounds, not provided for by Item 1 of that Article, if the relations between these persons may have influenced the results of transactions in the sale of goods (work, services). J. Applicable tax offences and related penalties 400. Article 122 §§ 1 and 3 of the Tax Code imposes a penalty of 40% of the unpaid tax liability on intentional non-payment or incomplete payment of the tax due, as a result of understating the taxable base. Articles 112 § 2 and 114 § 4 of the Tax Code provide for a 100% increase in this penalty in the event of a repeated offence by the same taxpayer. Article 114 § 3 of the Code also provides for a possibility of reducing the fine by half if there were extenuating circumstances on the facts of the case. 401. Article 114 § 7 of the Code makes it mandatory to recover the penalties in court. This rule does not apply to reassessed fines and interest surcharges. 402. Article 75 of the Tax Code provides for payment of an interest surcharge by taxpayers in cases of late payment of the taxes due. The interest surcharge amounts to one three-hundredth of the statutory rate for each day of the delay. Persons and entities that were unable to meet their tax liabilities in due time because their bank account was suspended by the tax authority or a court are excused from payment of the interest surcharge for the duration of the respective suspension (Article 75 § 3 of the Tax Code). K. Statutory time-bar 1. Situation prior to the Constitutional Court’s decision of 14 July 2005 (a) Statutory law 403. In accordance with Article 113 § 1 of the Tax Code (Chapter 15 General provisions concerning liability for tax offences), a person could not be held liable for a tax offence under Article 122 of the Code if three years had expired since the first day after the end of the tax period during which the offence was committed. The above provision only applied to the payment of fines. Article 115 of the Code sets out an additional six-month time-limit within which the authorities must collect the fines. It starts running from the date of adoption of the relevant audit report. 404. As regards the reassessed taxes and interest surcharges, Article 87 of the Tax Code (as in force as the relevant time) limited the ability of the authorities to carry out tax inspections by stating that “the[y] ... [may] only be carried out in respect of the activities of the relevant taxpayer ... during the three calendar years immediately preceding the year of the tax inspection” (see also decision no. 3803/01 of the Supreme Commercial Court below). (b) Practice directions by the Supreme Commercial Court 405. In paragraph 36 of Resolution of the Plenum of the Supreme Commercial Court no. 5 dated 28 February 2001 “On certain issues arising from application of the first part of the Tax Code”, the court indicated to the lower courts that “a taxpayer is considered to have been held liable [within the meaning of Article 113 of the Tax Code] on the date on which the head of the [relevant] tax body or his deputy takes a decision to hold this person liable of a tax offence in accordance with [the rules set out in] the Code”. 406. This interpretation was subsequently used by the Presidium of the Supreme Commercial Court in its decision no. 3803/01 (Averyanov v. the Tax Ministry), taken in 2002, where an offence had been committed in 1996, whilst the time-limit began to run on 1 January 1997 and expired on 1 January 2000. The Ministry’s decision was issued on 25 January 2000 and was, accordingly, time-barred in so far as the fines were concerned. (c) Case no. F09-3155/05-AK (OAO Bashselstroy v. the Tax Ministry) 407. On 30 September 2003 the Federal Commercial Court of the Ural Circuit reviewed and quashed the lower courts’ decisions in a tax dispute involving the Tax Ministry and a private shareholding. Among other things, the Circuit Court stated that the time-limit set out in Article 113 of the Code started running from the date on which the relevant facts came to the attention of the competent authorities (as a result of a tax inspection or other types of tax control). (d) Cases referred to by the applicant company 408. In a number of cases pre-dating the decision of the Constitutional Court of 14 July 2005, the courts applied Article 113 in line with an interpretation given by Resolution no. 5 of the Plenum of the Supreme Commercial Court of 28 February 2001 (see decision no. F04/7-1527/A27-2002 of 4 January 2003 of the Federal Commercial Court of the Western Siberia Circuit, decision no. F04/7-1527/A27-2002 of 8 January 2003 of the Federal Commercial Court of the Northern Western Circuit, decision no. F03-A59/03-2/745 of 23 April 2003 of the Federal Commercial Court of the Far-Eastern Circuit, decision no. A48-1188/03-2 of 12 November 2003 of the Federal Commercial Court of the Central Circuit, decision no. A82-471/2004-8 of 8 October 2004 of the Federal Commercial Court of the Volgo-Vyatskyy Circuit, decision no. F03-A73/04-2/947 of 19 May 2004 of the Federal Commercial Court of the Far Eastern Circuit, decision no. A19-3142/04-40-F02-3338/04-C1 of 24 August 2004 of the Federal Commercial Court of the Eastern Siberia Circuit, decision no. A19-9731/03-15-F02-4732/03-C1 of 9 January 2004 of the Federal Commercial Court of the Eastern Siberia Circuit, decision no. A33-15117/03-C3-F02-1877/04-C1 of 2 June 2004 of the Federal Commercial Court of the Eastern Siberia Circuit, decision no. KA-A41/9494-04 of 20 October 2004 of the Federal Commercial Court of the Moscow Circuit, decision no. F09-4221/04AK of 13 October 2004 of the Federal Commercial Court of the Ural Circuit, and decision no. F09-3799/04AK of 4 September 2004 of the Federal Commercial Court of the Ural Circuit). None of these cases involved a situation whereby a taxpayer had hindered a tax inspection or had deliberately sought to delay the tax proceedings. 2. Situation after the Constitutional Court’s decision of 14 July 2005 (a) Case no. KA-A40/5876-06 (OAO Korus-holding v. the Tax Ministry) 409. By a decision of 28 July 2006 the Federal Commercial Court of the Moscow Circuit, acting as a cassation review instance, reviewed the application of the time-limits of Article 113 of the Code. The audit report prepared by the Ministry in respect of the calendar year 2001 was dated 28 February, whilst the decision to hold the taxpayer liable was issued on 29 March 2005. The Circuit Court decided that the authorities could be said to have been acting in time provided that they respected the requirements of Article 87 of the Code, which sets out a three-year time-limit for conducting tax inspections and Article 23 § 8 (1) of the Code, which sets out a four-year time-limit for the maintenance of accounting documents. The Circuit Court also specifically noted the actions of OAO Korus-holding, which had sought to hinder and complicate the tax inspection. (b) 2006 amendments to Article 113 of the Tax Code 410. The text of Article 113 has been amended by Federal Law no. 137-FZ of 27 July 2006, which came into force on 1 January 2007. The provision now contains § 1.1., which states: “1.1. The running of the time-limit for holding a taxpayer liable stops if [the taxpayer] actively hindered an on-site tax inspection, thus creating an insurmountable obstacle for that inspection and for the determination by the tax authorities of the amount of taxes due to the budgetary system of the Russian Federation. The running of the time-limit [in question] is suspended on the date of adoption of a report [setting out the circumstances in which the taxpayer denied the tax authorities access to the relevant documents]. In this case, the running of the time-limit continues on the date when the above-mentioned circumstances no longer exist and a decision on continuation of the on-site tax inspection is taken.” (c) Case no. F08-2786/2007-1290A (the Tax Ministry v. N. A. Borshcheva) 411. On 31 May 2007 the Federal Commercial Court of the North Caucasian Circuit, acting as a cassation review instance, reviewed the application of the time-limits of Article 113 of the Code. The audit report prepared by the Ministry in respect of the calendar years 2001-2004 was dated 18 July 2006, whilst the decision to hold the taxpayer liable was issued on 4 September 2006. Again, the Circuit Court decided that the authorities had been acting in time, regard being had to the taxpayer’s actions for the purpose of delaying and hindering the tax inspection. L. Applicable rules on court procedure 1. First-instance proceedings (a) Territorial jurisdiction 412. Under Article 35 of the Code of Commercial Court Procedure of 24 July 2003 no. 95-FZ (as in force at the relevant time), claims should be brought to a court having jurisdiction over the defendant’s official place of business. 413. Article 54 of the Civil Code defines a company’s official place of business as the place of the company’s registration, unless, in accordance with the law, the company’s articles of association do not specify otherwise. 414. Decision no. 6/8 of the Plenary Session of the Supreme Court and Supreme Commercial Court of 1 July 1996 specifies that the company’s official place of business is the location of its entities. (b) Interim measures 415. Under Article 91 of the Code of Commercial Court Procedure, a party may apply for proportionate security measures, including attachment of a defendant’s assets, pending the examination of the case by the courts. (c) Grace period 416. Article 213 of the Code of Commercial Court Procedure provides that in tax cases a court suit may be filed by the authorities when their demands have not been complied with voluntarily, or when the term for voluntary compliance has expired. (d) Time-limits for examination of cases concerning mandatory payments and penalties 417. Article 215 of the Code of Commercial Court Procedure sets out a two-month time-limit during which a first-instance court is to finalise the examination on the merits of any case which involves mandatory payment and related penalties. (e) Time-limits for the preparation and examination of the case at first instance 418. Article 134 of the Code of Commercial Court Procedure establishes a two-month time-limit for the preparation of the case for examination at first instance. 419. Pursuant to Article 152 of the Code, the first-instance court should examine the case and deliver its judgment within one month of a decision to list the case for a hearing. (f) Rules on adding evidence to the case after the beginning of the hearing 420. Article 65 (3) of the Code of Commercial Court Procedure makes it mandatory for a party to disclose all evidence relied upon in their claims or objections prior to the beginning of the hearings in a case. 421. In paragraph 35 of Information Letter no. 82, dated 13 August 2004, the Supreme Commercial Court gave the following recommendation in respect of whether the trial court ought to accept and examine evidence that was previously undisclosed by the parties prior to the beginning of the hearings in a case: “Any evidence undisclosed by the parties to the case prior to the hearing, but submitted later during the examination of the evidence, shall be examined by the commercial court at first instance regardless of the reasons for which the procedure for disclosure of evidence was breached ...” (g) Right to lodge an appeal against the first-instance judgment 422. Under Articles 257 and 259 of the Code of Commercial Court Procedure participants in the proceedings have one month from the delivery of the first-instance judgment to lodge an appeal. 2. Appeal proceedings 423. Under Article 267 of the Code of Commercial Courts Procedure, an appeal court must examine an appeal lodged against the first-instance judgment within one month, starting from the date of its filing. This term includes any time necessary for case preparation and for reaching the appeal decision. By federal law no. 205-FZ dated 19 July 2009 the time-limit was increased to two months. By federal law no. 69-FZ dated 30 April 2010 the provision in question has been amended. The time-limit became extendable up to six months depending on the complexity of the case and the number of participants. The provision also made it clear that the time-limit started running on expiry of the time-limit for lodging an appeal. 424. Under Article 268 of the Code, an appeal court fully re-examines the case using the evidence contained in the case and any newly-presented additional evidence. In examining procedural motions by the parties, including requests to call and hear additional witnesses or adduce and examine additional pieces of evidence, the appeal court is not bound by previous refusals of the same motions by the first-instance court. 425. Under Articles 180, 271 and 318 of the Code, the first-instance judgment becomes enforceable on the date of the entry into force of the appeal decision confirming it. The enforcement takes place on the basis on a writ issued by the respective court. 3. Cassation proceedings 426. In accordance with Article 286 of the Code, a cassation instance court, among other things, reviews the lower courts’ decisions and verifies whether the conclusions of the lower courts in respect of both law and fact correspond to the circumstances of the case. 427. Article 283 of the Code provides for a possibility of applying for a stay of enforcement of the lower courts’ decisions. The applicant must show that it would be impossible to reverse the effects of an immediate enforcement of the lower courts’ decisions if the cassation appeal were successful. M. Domestic courts’ case-law 428. In its rulings no. 7-P dated 6 June 1995, no. 14-P dated 13 June 1996 and no. 14-P dated 28 October 1999, the Constitutional Court formulated and reiterated the principle that the constitutional right to judicial protection could not be respected unless courts examined in substance the factual circumstances of the case, without merely limiting themselves to formalistic application of the legal norms. It has frequently referred to this principle in subsequent rulings. 1. Court disputes involving re-characterisation of sham arrangements (a) Case no. A40-31714/97-2-312 (the Tax Ministry v. OOO TF Grin Haus) 429. In 1996 the respondent legal entity was involved in a series of intertwined transactions (rent contracts and loan agreements) with two third parties: as a result, the respondent leased a building in central Moscow to the third parties, but was able to avoid inclusion of the rent payments in the taxable base of its operations by claiming that they were interest payments in respect of the loan agreement. The Ministry discovered the tax evasion scheme, re-characterised the transactions in question as rent and ordered the taxpayer to pay RUB 2 billion in back taxes. 430. The case was examined in three rounds of court proceedings by the courts at three levels of jurisdiction. Having regard to the substance of the transactions entered into by the respondent, the terms of payment and execution of the contested contracts, and, generally, to the conduct of the respondent company and the third parties, the courts decided that the contractual arrangement had been sham, re-characterised the arrangement as rent and upheld the Ministry’s decision. 431. In the first round of proceedings the courts adopted their decisions on the following dates: 1 December 1997, 27 January 1998 and 30 March 1998. 432. In the second round of proceedings the decisions were adopted by the first-instance and appeal courts on 26 May 1998 and 21 July 1998. The decision of the cassation court was taken on an unspecified date. 433. The third round of proceedings involved decisions on 17 November 1998, 25 January 1999 and 2 March 1999. (b) Case no. KA-A40/2183-98 (the Tax Ministry v. AuRoKom GMBH) 434. The respondent legal entity entered into a loan agreement with a third party; the tax authorities considered it a sham, re-characterised it as a rent contract and reassessed the tax due in respect of the profits made. The lower courts disagreed and quashed the tax authority’s decision. By a decision of 17 September 1998 the cassation court quashed the lower courts’ decisions and ordered that the matter be re-examined, giving due regard to all relevant circumstances, including the substance of the transaction. The courts were to reconsider all relevant clauses in the agreement in question, the conduct of the parties and the fact of physical occupation of the allegedly rented space. (c) Case no. A40/36819/04-75-387 (the Tax Ministry v. OAO AKB Rossiyskiy Kapital) 435. The respondent legal entity is a bank which in 2001-2002 conducted business by buying and then reselling precious metals. To avoid the payment of full VAT on its sales operations in this respect, the bank entered into commission agreements with the sellers from which it bought the metals, in order to be considered not as the owner of the traded goods, but merely as the sellers’ agent. 436. The domestic courts took account of the substance of the bank’s transactions (terms of payment, actual circumstances of delivery and other relevant factual details) and, having established that in reality the bank had been buying and reselling the precious metals, re-characterised the bank’s activity as sales. The courts referred to Article 209 of the Civil Code (containing the legal definition of an owner) and concluded that the bank first bought the precious metals, thus becoming the “owner” within the meaning of the said provision and thereafter resold the goods. They found the bank liable for tax evasion under Article 122 of the Tax Code, ordered it to pay reassessed VAT in the amount of RUB 1,091,123,539.42, default interest of RUB 408,289.76 and penalties of RUB 436,391,918.65. 437. The first-instance judgment was adopted on 3 November 2004 and upheld on appeal on 11 January 2005. 2. Tax evasion schemes involving sham rent agreements and letter-box entities registered in the domestic offshore town of Baykonur (a) Case no. A41 K1-13539/02 (the Tax Ministry v. OAO Ufimskiy NPZ and ZAO Bort-M) 438. OAO Ufimskiy NPZ, the main production unit of one of the biggest Russian oil companies, OAO Bashneft, physically located in the town of Ufa, used the domestic tax offshore territory situated in the town of Baykonur, the territory rented by Russia from the Republic of Kazakhstan for its space-related projects. The town’s tax regime was similar to that in the closed administrative-territorial formations (see above). 439. On 1 February 2001 the respondents OAO Ufimskiy NPZ and ZAO Bort-M, a letter-box entity registered in Baykonur, entered into a rent agreement whereby the entirety of OAO Ufimskiy NPZ’s production facilities were rented by ZAO Bort-M in exchange for nominal compensation. Since ZAO Bort-M was registered in Baykonur, the activity of OAO Ufimskiy NPZ enjoyed lower rates in respect of excise duties. The tax authorities discovered “the scheme” and contested it in court as sham and therefore null and void. 440. On 8 October 2002 the first-instance court had regard to the substance of the transaction and, having established that, despite the contractual arrangement, OAO Ufimskiy NPZ had continued to operate the facilities in question, that furthermore the letter-box entity was never properly registered and licensed as the operator of oil processing and oil storage facilities in accordance with the relevant law, and that the letter-box entity could not operate the facility because it had rented only one part of the production cycle (which, in technological terms, could not be split in two), that the sole aim and effect of the arrangement was tax evasion and that OAO Ufimskiy NPZ and ZAO Bort-M had “malicious intent” to evade taxes, upheld the tax authorities’ claim. 441. The first-instance judgment was upheld on appeal and in cassation on 17 December 2002 and 19 March 2003 respectively. (b) Cases nos. A41 K1-13244/02 (the Tax Ministry v. OAO Novo-ufimskiy NPZ and ZAO Bort-M), A41 K1-11474/02 (the Tax Ministry v. OAO Novo-ufimskiy NPZ and OOO Korus-Baykonur), A41 K1-137828/02 (the Tax Ministry v. OAO Ufimskiy NPZ and OOO Korus-Baykonur) 442. These cases are essentially follow-ups to the previous case: OAO Novo-Ufimskiy NPZ is the second main production unit of OAO Bashneft and was involved in exactly the same tax-evasion scheme, using the sham offshore entities ZAO Bort-M and OOO Korus-Baykonur. The domestic courts examined all three cases at three instances and granted the Ministry’s claims. The decisions in the first set of proceedings were taken on 9 October, 16 December 2002 and 13 March 2003. The decisions in the second set of proceedings were taken on 19 September 2002, 5 December 2002 and 28 February 2003. The decisions in the third set of proceedings were taken on 18 December 2002, 20 February 2003 and 26 May 2003. (c) Case no. A41 K1-9254/03 (the Tax Ministry v. OOO Orbitalnye sistemy and OAO MNPZ) 443. This case concerns exactly the same tax-evasion scheme as in the previous cases, but involves OAO MNPZ, a major oil-processing facility located in Moscow and owned by the Government of Moscow, as the defendant. 444. The decisions in the case were taken on 29 October and 27 December 2004. (d) Case no. KA-A41/6270-03 (the Tax Ministry v. OOO Ekologiya) 445. This case also concerns the tax-evasion scheme described in the previous cases. The Ministry assessed the company, apparently a sham entity belonging to an oil producer, and found that it owed additional taxes, surcharges and penalties. The entity prevailed at first instance on 15 May 2003. On 10 October 2003 the cassation court quashed the first-instance judgment, as the lower court had failed to take into account the relevance of the entity’s activity for the economy of the town of Baykonur, which was one of the criteria the law considered relevant to the issue of the lawfulness of tax exemptions. 3. Sham rent agreements and letter-box entities registered in the domestic offshore town of Ozersk (closed administrative-territorial formation, ZATO) (a) Case no. A55-1942/04-24 (the Tax Ministry v. OAO Novokuybyshevskiy NPZ and OOO SK-STR) 446. The case concerns the same tax-evasion scheme as in the previous cases (involving the sham renting agreement), but the offshore territory at issue is the town of Ozersk and the taxpayer is OAO Novokuybyshevskiy NPZ, one of the applicant company’s subsidiary oil-processing units. 447. The scheme operated from January 1999 and was prosecuted in 2004. The first-instance judgment in favour of the Ministry was taken on 13 August 2004. The court applied the same ‘substance over form’ approach as in the previous cases and, having assessed the defendants’ conduct, the character of their relations and statements by the officials of the entities, granted the Ministry’s claims and also ordered OAO Novokuybyshevskiy NPZ to pay RUB 120,688,860 in reassessed taxes. (b) Case no. A55-5015/2004-33 (the Tax Ministry v. OAO Novokuybyshevskiy NPZ and OOO SK-STR) 448. This is a follow-up to the previous case: in the first-instance judgment the court declared the defendants’ contractual arrangement to be sham and unlawful and ordered OAO Novokuybyshevskiy NPZ to pay RUB 252,963,364 in reassessed taxes. 449. The first-instance judgment in the case, dated 19 October 2004, was upheld on appeal on 19 October 2004. (c) Case no. A55-1941/2004-40 (the Tax Ministry v. OAO Syzranskiy NPZ and OOO SK-STR) 450. This is a follow-up to the previous cases and involved OAO Syzranskiy NPZ, a production unit belonging to the applicant company. The rent agreement between the letter-box entity and the applicant company’s production unit was declared sham and annulled. OAO Syzranskiy NPZ was ordered to pay RUB 30,309,119 in reassessed taxes. 451. The first-instance judgment of 18 August 2004 was upheld on appeal on 4 November 2004. 4. Sham arrangements and VAT fraud (a) Case no. 367/96 (the Tax Ministry v. Russian-Austrian Joint Stock Enterprise “Sibservis”) 452. The respondent legal entity is a privately-owned enterprise specialised in importing and assembling computer equipment. In 1995 the respondent disguised a portion of its sales as loan agreements with its clients in order to avoid payment of VAT. The first-instance judgment and the appeal decision in the case were taken on 31 August and 11 October 1995. On 17 September 1996 the Presidium of the Supreme Commercial Court of Russia reviewed the lower courts’ decisions and quashed them, ordering the lower courts to investigate the exact circumstances of the case, including everything relating to “the sales disguised as loans” arrangements. (b) Case no. A57-11990/01-5 (the Tax Ministry v. FGUP Nizhnevolzhskgeologiya) 453. The respondent legal entity is a State-owned enterprise specialising in geological exploration and identification of oil fields. In 2000 it entered into a series of deliberately unprofitable oil trading transactions with a third party, OOO Roza-Mira Processing. Since the transactions preceded the actual export of oil, the two taxpayers, acting in concert, intended to obtain an artificially increased VAT refund. Having regard to the substance of the transaction and the relevant circumstances of the case, such as the terms of actual payment and execution, the courts decided that the transactions were sham, declared them null and void and refused the respondent’s request for a VAT refund. In addition, the courts recovered the unpaid VAT with penalties. 454. The domestic courts reached their respective decisions on 22 November 2001, 29 April and 8 July 2002. (c) Case no. 7543/02-16 (the Tax Ministry v. OAO Saratovneftegaz) 455. The respondent legal entity is the main production unit of OAO NK Russneft, a large Russian private oil company, which was involved in a dispute with the Ministry over VAT refunds in respect of its export operations. The courts established that in 2001 the respondent entered into a series of transactions with a number of third parties, aimed at deceiving the Ministry and claiming an artificially increased VAT refund. The courts took account of the overall economic effect of the transactions in their entirety, numerous discrepancies and contradictions between the contractual arrangements, the actual movement of oil, the documents certifying the customs clearance of the goods in question, etc., and refused to recognise them as valid for the purposes of reimbursement of VAT. The courts concluded that the Ministry had been acting lawfully by refusing the respondent company’s request for a refund of export VAT. 456. The domestic courts reached their respective decisions on 30 June 2003, 31 May and 16 September 2004. (d) Case no. A28-7017/02-301/21 (the Tax Ministry v. OAO Kirovskiy Shinnyy Zavod) 457. This is essentially a follow-up to the previous cases. The courts reached similar conclusions in respect of the respondent company and recovered RUB 5,000,000 in overpaid VAT in favour of the Ministry. 458. The decisions in the case during the first round of proceedings were taken on 19 December 2002, 19 March 2003 and 27 June 2003. 459. The second round of proceedings resulted in the first-instance judgment of 19 December 2002, the appeal decision of 19 March 2003 and the supervisory review decision of 23 December 2003. (e) Case no. A09-846/03-28 (the Tax Ministry v. ZAO Melkruk, OOO Antareks-Unit, OOO Starlayt-N) 460. The first respondent legal entity is a big producer of grains, cereals and related processed products. It was involved in a dispute with the Ministry over VAT refunds in respect of export operations, whereby it had commissioned the second respondent to sell certain equipment abroad. The equipment was bought by the third respondent and resold “at an economic loss” to an entity registered in a foreign offshore location. Having regard to various circumstances, including the conduct of the entities involved and the fact that no actual hard cash had been paid for the equipment in question, the Ministry applied to court, asking it to invalidate the transactions in question as sham. The first-instance court dismissed the claim but the appeal and cassation review courts subsequently reversed that judgment, essentially upholding the Ministry’s approach. 461. The domestic courts took their respective decisions on 14 April 2003, 4 August 2003 and 10 December 2003. (f) Case no. A09-1646/03-GK (the Tax Ministry v. OAO Belkamneft, Baxter Trading Inc, OOO Tekhnotreyd) 462. The first respondent legal entity was involved in a dispute with the Ministry over VAT refunds in respect of export operations, whereby it had entered in complex relations with the other two respondents to sell certain goods abroad. Having regard to various circumstances, including the conduct of the entities involved and the fact that no actual hard cash had been paid for the goods in question, the Ministry applied to court, asking it to invalidate the transactions in question as sham and therefore null and void. The courts at three instances upheld the Ministry’s approach. 463. The domestic courts took their respective decisions on 28 December 2002, 10 April 2003 and 1 July 2003. (g) Case no. F09-1071/03-AK (the Tax Ministry v. OOO Khudozhestvennaya masterskaya “Tvorchestvo”) 464. The respondent entity was involved in a dispute with the Ministry over the latter’s refusal to refund the VAT in respect of the entity’s export operations. The Ministry uncovered an arrangement whereby there had been no hard cash transactions between the parties to the export operation, the respondent had “traded at a loss” and the allegedly exported produce had had nothing to do with the respondent’s usual business activity. Having regard to various circumstances, including the conduct of the entities involved, the courts at three instances upheld the Ministry’s approach. 465. The domestic courts took their respective decisions on 29 October 2002, 6 February 2003 and 17 April 2003. 5. Case-law of the domestic courts concerning the invalidity of sham transactions 466. By a decision dated 15 May 1997 in the case of the Tax Ministry against Commercial Bank Mechel-Bank and OAO Mechel (no. F09-162/97-AK), the Federal Commercial Court of the Ural Circuit quashed the decisions of lower courts in which they had upheld the lawfulness of a “kickback” contract which had been concluded between the respondent bank and the respondent company. The Circuit Court ruled that the lower courts had failed to study and to take account of all of the circumstances relevant to the case at issue. In particular, the court noted the finding that the contract had been concluded specifically to avoid the payment of taxes. Accordingly, it reversed and invalidated the contract as unlawful, contrary to the legal order and morality, and ordered that the proceeds (RUB 1.5 bn) derived by the parties from the contract be seized in favour of the State. 467. In a decision of 9 December 1997 in case no. 5246/97, the Presidium of the Supreme Commercial Court of Russia invalidated a loan secured by a promissory note and a related pay-off agreement as imaginary and sham respectively. The court had regard to the terms of contracts concluded between the parties and the manner of their execution, in particular the fact that the loan had never been used by the borrower; it concluded that the transactions in question covered the sale of a promissory note and invalidated them as sham. 468. In a decision of 6 October 1998 in case no. 6202/97 the Presidium of the Supreme Commercial Court of Russia invalidated two contracts for the sale of securities and a related loan agreement as sham, having regard to the terms of contracts in question, the manner of their execution and the contractual prices. The court established that the sales contracts in fact covered the loan agreement secured by the pledge of securities and remitted the case for re-trial. N. Enforcement proceedings in respect of a presumably solvent debtor 1. General principles 469. The Enforcement Proceedings Act (Law no. 119-FZ) of 21 July 1997 (as in force at the relevant time) establishes the procedure by which a creditor may enforce a court award against a presumably solvent legal entity debtor. According to Article 46 § 6 of the Act, execution was to be levied against the debtor’s property “in such amount and such scope as is required to ensure the satisfaction of claims set out in the enforcement document”. 470. Russian legislation provides for a set of special procedures in respect of presumably insolvent legal entity debtors (see section O below). 2. Term for voluntary compliance with the execution writ 471. Under section 9 (3) of the Enforcement Proceedings Act, on an application by the creditor, the bailiff institutes enforcement proceedings, fixes the time-limit for enforcement of the execution writ - which may not exceed five days from the date of institution of enforcement proceedings - and notifies the debtor accordingly. 3. Various ways to stay or delay enforcement proceedings 472. Article 324 of the Commercial Procedure Code sets out a procedure whereby a court may alter the method and order of enforcement of a final court decision. Among other thing, it provides as follows: “1. If there are circumstances which make it difficult to enforce the judicial act, the commercial court which issued a writ may, upon an application by the creditor, debtor or bailiff, grant respite in respect of the enforcement or arrange for the payment in instalments, or otherwise change the method or order of enforcement. ...” 473. At the same time, Articles 62, 64 (1) and (2) of the Tax Code specify that a respite or possibility of repaying in instalments concerns only the taxes, and not the interest surcharges and penalties, and may be granted by a court only for a period from one to six months from the original deadline for payment, may only be granted on specific grounds enumerated in the law and cannot be granted if there are tax proceedings pending against the applicant (Article 62 (1)). 474. The Enforcement Proceedings Act provides for three possibilities, namely: (a) to postpone enforcement actions for a term of up to 10 [6] days (section 19); (b) to suspend the enforcement proceedings (section 21); or (c) to defer the execution of enforcement of a debt or arrange for payment in instalments (section 18). 475. With regard to (a), the bailiff takes the decision in the “appropriate circumstances” either on an application by the debtor or of its own motion. 476. With regard to (b), the decision may only be taken in seven enumerated cases: if the bailiff applied to the court with a request to interpret the judicial act; on a request from a debtor who has been drafted to serve in the army; if the debtor is on a long-term mission; if the debtor is hospitalised and being treated; if the actions of the bailiff are being contested in court; if the debtor himself or his property is being searched for; if the debtor or creditor are on holiday and cannot be contacted. 477. As regards (c), the debtor, creditor or bailiff has the right to request the court to defer the execution of enforcement of a debt or arrange for payment in instalments if there are “circumstances impeding the enforcement actions”. 4. Seizure of the debtor’s assets 478. If the debtor does not comply within the specified time-limit, under section 9 (5) of the Enforcement Proceedings Act the bailiff, on an application by the creditor, has the right to make an inventory of the debtor’s property and to seize it. 479. Under section 9 (5) of the Law on Enforcement Proceedings the bailiff is empowered to seize any of the debtor’s assets to secure enforcement. In seizing the debtor’s assets the bailiffs are obliged to follow the order of priority of arrest and sale set out in section 46 (2) of the Law on Enforcement, which provides: “... execution under enforcement documents shall, in the first priority, be levied on the debtor’s monetary funds in roubles and in foreign currency, and on other valuables, including those kept in banks and other credit institutions”. At the same time, the Supreme Commercial Court specified in its Information Letter no. 6, dated 25 July 1996: “... the freezing of cash ... may not be imposed on the respondent’s account and on amounts that will enter this account in the future ...”. In its Resolution no. 11 of 9 December 2002 the Plenary Supreme Commercial Court ruled: “... arrest on cash owned by the debtor shall be imposed not on its account in credit institutions but on cash that is on the accounts, within the limits of the monetary claims ...” 480. Section 46 (5) of the Enforcement Proceedings Act provides that, if a debtor lacks sufficient cash funds to satisfy the creditor’s claims, the debt may be levied from the other forms of the debtor’s property, unless the federal law states otherwise. The debtor has the right to indicate his preferred order of priority, but the final order is determined by the bailiff. 481. Section 51 of the Enforcement Proceedings Act establishes a one-month time-limit for the seizure of the debtor’s property from the date on which the ruling on the institution of enforcement proceedings is served. The seizure is intended, inter alia, to secure the safety of the debtor’s property and the creditor’s claims, which shall be subject to a subsequent transfer to the creditor or to a subsequent sale. The seizure of securities is carried out in conformity with the procedure defined by the Government of the Russian Federation in Decree no. 934 “On the seizure of securities”, dated 12 August 1998. 482. Section 59 of the Enforcement Proceedings Act establishes the order of priority in the seizure and forced sale of a debtor’s property in three stages. Firstly, the bailiff sells property which is not immediately involved in the debtor’s production cycle (securities, cash on the debtor’s deposit and other accounts, currency valuables, cars, office equipment, etc.); secondly, finished products (goods) and other material values not immediately involved in production and not intended to play an immediate part in it; and, thirdly, real-estate objects, as well as raw and other materials, machine-tools and equipment and other fixed assets, intended for immediate involvement in production. 483. In Ruling no. 4 “On certain questions arising out of seizure and enforcement actions in respect of corporate shares”, dated 3 March 1999, the Plenum of the Supreme Commercial Court decided that in respect of companies which had been privatised by the State as parts of bigger holding groups through the transfer of controlling blocks of shares, the production cycle of the respective production unit should be preserved as much as possible. 5. Enforcement fee 484. Section 81 of the Enforcement Proceedings Act penalises a debtor’s failure to comply voluntarily with a writ of execution with a 7% enforcement fee. Under Section 77 of the Act the fee is a priority payment which should be made by the debtor even before it begins repaying the principal debt. 485. In ruling no. 13-P of 30 July 2001 the Constitutional Court of Russia described the enforcement fee as an administrative penal sanction having a fixed monetary expression, exacted by compulsion, formalised by the decision of an authorised official and levied in favour of the State. The Constitutional Court struck the above provision down as unconstitutional, in so far as it did not allow the debtor to excuse his failure to comply with the writ by reference to certain extraordinary, objectively inevitable circumstances and to other unforeseeable and insurmountable obstacles beyond the debtor’s control. 486. The Government referred to over a dozen cases from across Russia which, they claimed, confirmed that that the 7% enforcement fee was levied by bailiffs as a matter of standard practice in the event of the debtor’s failure to pay, routinely and without exceptions, even if the debtor was a State-owned entity or indeed a State body. Here are some examples: enforcement proceedings dated 19 January 2001 no. 6-26/2001, in respect of RUB 304,078,000, owed by a State-owned private-law entity GUP Tatvodokanal; enforcement proceedings dated 18 November 2005 no. 3068/62/2/2006 in respect of RUB 108,083,008.64, owed by the Ministry of Education of the town of Kazan; enforcement proceedings dated 18 December 2002 no. 2-12/2002 in respect of RUB 19,0311,000, owed by OAO Tatavtodor; enforcement proceedings dated 25 February 2004 no. 7-18/04 in respect of RUB 445,336,550.84, owed by OAO Vertolety-MI; enforcement proceedings dated 13 November 2001 no. 5-17/2001 in respect of RUB 917,787,000, owed by FKP Kazanskiy zavod tochnogo mashinostroeniya imeni M. I. Kalinina. 6. Forced sale of arrested assets (a) Rules concerning valuation of frozen property 487. Section 53 of the Enforcement Proceedings Act requires the bailiff to evaluate the arrested property on the basis of market prices on the date of execution of the enforcement writ. Should valuation be problematic for technical or any other reasons, the bailiff is to appoint a specialist to carry out the valuation. 488. According to a Decree of the Ministry of Justice dated 27 October 1998, the bailiff is obliged to appoint a specialist to conduct the valuation if the seized property is shares or other securities ( ценные бумаги ). Under the same Decree the bailiff is to inform the debtor and creditor of the resulting valuation. (b) General rules concerning the sale of frozen property 489. Section 54 of the Enforcement Proceedings Act requires the bailiff to sell the arrested property in satisfaction of the debt within two months of the date of seizure. The sale is carried out by a specialised institution on the basis of a commission contract with the bailiff. 490. According to Government Decree no. 418 “On the Russian Fund of Federal Property” of 29 November 2001 and Government Decree no. 260 “On the Sale of Seized, Confiscated and Other Property ...” of 19 April 2002, the Fund is entrusted with the task, inter alia, of auctioning property seized in satisfaction of the debts owed to Russia. 7. Distribution of levied sums and order of priority in the event of multiple claimants 491. Section 77 of the Enforcement Proceedings Act provides that, in respect of the sums levied from the debtor, including the proceeds from the forced sale of the debtor’s property, the bailiffs first recover enforcement fees and all related payments and the remainder is used in satisfaction of the creditors’ claims. 492. If the proceeds from the forced sale(s) are insufficient to satisfy all creditors, the following order of priority applies (section 78 of the Enforcement Proceedings Act): tort claims, employment and labour-related claims, claims made on behalf of the Pension Fund and the Social Security Fund of Russia, claims made on behalf of the budgets of various territorial levels and finally all other claims. 8. Court appeals against bailiffs’ decisions 493. Under section 90 of the Enforcement Proceedings Act, all actions by the bailiff in the course of enforcement proceedings can be appealed against within ten days from the date of proper notification of the action in question. 494. Any damage inflicted on the debtor as a result of the bailiff’s omission is compensated in accordance with the applicable legislation. O. Enforcement proceedings in respect of an insolvent debtor legal entity 495. The enforcement of court awards and more generally debt claims against insolvent or presumably insolvent debtor legal entities are regulated by the Insolvency (Bankruptcy) Act of 26 October 2002 (Law no. 127-FZ). 1. Definition of the state of insolvency (bankruptcy) 496. Section 3 of the Insolvency (Bankruptcy) Act defines the state of bankruptcy of a legal entity as follows: “A legal entity is regarded as being unable to satisfy the claims of creditors in respect of pecuniary obligations and (or) to fulfil its obligations in respect of mandatory payments if the respective obligations and (or) obligation are not complied with within three months of the date on which compliance should have occurred.” 497. In accordance with section 4 of the Act, the obligations are, as a general rule, defined/recognised by the court on the date of examination of the bankruptcy petition. 498. Bankruptcy proceedings in respect of a legal entity may only be instituted by a court if the overall amount of debt claims exceeds RUB 100,000 (section 6 of the Act). 2. Bringing of a bankruptcy petition 499. Under section 7 of the Act the debtor, the debtor’s creditors in respect of pecuniary claims and State bodies competent to take part in bankruptcy proceedings in which the State is a creditor in respect of mandatory payments are entitled to bring a bankruptcy petition. 500. Whilst the executive body of the debtor has the right to file for bankruptcy in circumstances where it is obvious that the debtor would be unable to fulfil its obligation in due time (section 8 of the Act), it has a legal duty to do so if the forced seizure of the debtor’s property in satisfaction of a claim would make the debtor’s economic activity extremely difficult or impossible (section 9 of the Act). In this latter respect, the petition should be brought within one month from the date on which the respective relevant circumstances occurred. 501. Failure to abide by the above rules exposes the offender to civil liability action by virtue of section 10 of the Act and may also make the offender vicariously liable for any resulting damage. 3. Examination of a bankruptcy petition 502. The admissibility of the bankruptcy petition is examined by a single-judge bench (section 48 of the Act). Having declared the petition well-founded (admissible), the judge is to impose a supervision order in respect of the debtor (see below). 503. The merits of the bankruptcy petition should be examined by a court within seven months of the date of its filing (section 51 of the Act). 504. Having examined the merits of the bankruptcy petition, the court takes one of the following decisions (section 52 of the Act): (a) it declares the debtor bankrupt and applies the liquidation procedure in respect of the debtor; (b) it rejects the request to declare the debtor bankrupt; (c) it introduces a “financial improvement order” in respect of the debtor; (d) it applies the procedure of external management; (e) it discontinues the bankruptcy proceedings; (f) it disallows the bankruptcy petition; (g) it approves the friendly settlement of the case. 4. Various solutions available to a court in resolving a bankruptcy case 505. The following five procedures may be applicable in respect of the debtor in a bankruptcy case (section 27 of the Act): (a) supervision order; (b) financial improvement order; (c) external management; (d) liquidation; (e) friendly settlement. 506. A supervision order is defined as the first procedure applied to the debtor (see above). It consists of securing the debtor’s property, analysing its financial condition, composing the list of creditors and carrying out the first assembly of creditors (section 2 of the Act). The decision to impose a supervision order is taken by a judge in accordance with section 9 of the Act. It can be appealed against to a higher court. In the decision, the judge should also appoint an interim receiver. 507. A financial improvement order is a bankruptcy procedure intended to re-establish the debtor’s solvency and consisting in repayment of the debts in accordance with a debt repayment schedule (section 2 of the Act). 508. External management is a bankruptcy procedure intended to re-establish the debtor’s solvency (section 2 of the Act). 509. Liquidation is a bankruptcy procedure applied in respect of a debtor who has been declared bankrupt. It is essentially the sale of the debtor’s property by a court-appointed trustee in proportionate satisfaction of the creditors’ claims (section 2 of the Act). 510. Friendly settlement is a bankruptcy procedure applicable at any stage of bankruptcy proceedings whereby the creditors and the debtor reach an agreement in respect of the debtor’s liability (section 2 of the Act). 5. Supervision order and its consequences 511. The automatic consequences of the decision to adopt a supervision order in respect of the debtor legal entity (section 63 of the Act) are, in particular, the following: all debts due after the date of the decision are recoverable only pursuant to a special procedure; enforcement of execution writs already issued, including any pecuniary claims (with the exception of those relating to payment of salaries and tort claims) against the debtor, is halted, and the seizure in respect of the debtor’s property is lifted. 512. The law also introduces some restrictions in respect of operations with the debtor’s shares and the actions of the debtor itself (section 64 of the Act). However, the debtor’s management team remains in place, subject to limitations restricting their ability to dispose of the debtor’s property above a certain value (more than 5% of the book costs of the debtor’s property) or to indebt the debtor further by contracting loans, issuing guaranties or sureties, transferring debts to third parties or transferring the debtor’s property for external management by a third party. 513. An interim receiver is appointed by a court in accordance with sections 45 and 65 of the Act. At this stage of proceedings, he or she has no management functions and is essentially responsible for securing the debtor’s property, watching over the activities of the debtor’s management, analysing the debtor’s financial condition and identifying the debtor’s creditors. The interim receiver is accountable to a court and is in charge of organising the first meeting of creditors. 514. For a period of thirty days from the date of publication of the supervision order notice, the creditors have the right to file their claims against the debtor (section 71 of the Act). The claims may be included in the list of creditors on the basis of the court’s decision. 515. At least ten days prior to the date of termination of the supervision order, the interim receiver must organise the first meeting of creditors (section 72 of the Act). At the meeting, the creditors are competent, among other things, to decide either: (a) to introduce a financial supervision order and lodge the relevant request with the court; (b) to introduce an external management order and lodge the respective request with the court; or (c) to request the court to declare the debtor bankrupt and impose a liquidation order (section 73 of the Act). | This case concerned the tax and enforcement proceedings brought against the applicant oil company – one of Russia’s largest and most successful businesses, which was fully state-owned until 1995-1996, when it was privatised – which led to its liquidation. The applicant company complained in particular of irregularities in the proceedings concerning its tax liability for the 2000 tax year and about the unlawfulness and lack of proportionality of the 2000-2003 tax assessments and their subsequent enforcement. It maintained that the enforcement of its tax liability had been deliberately orchestrated to prevent it from repaying its debts; in particular, the seizure of its assets pending litigation had prevented it from repaying the debt. It also complained about: the 7% enforcement fee; the short time-limit for voluntary compliance with the 2000-2003 tax assessments; and, the forced sale of OAO Yuganskneftegaz. The applicant further argued that the courts’ interpretation of the relevant laws had been selective and unique, since many other Russian companies had also used domestic tax havens. It submitted that the authorities had tolerated and even endorsed the “tax optimisation” techniques it had used. It further argued that the legislative framework had allowed it to use such techniques. |
445 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1965. When he lodged his application he was in prison serving a sentence for economic offences. A. The applicant ’ s imprisonment and applications for an interruption of the sentence on medical grounds 7. In 2002 the National Anti-Corruption Prosecution Service commenced proceedings against the applicant on charges of involvement in a vast criminal network operating in the economic field, involving several dozen individuals and some one hundred business companies. With the complicity of bank employees, fraudulent appropriations were granted to those companies, which money was then misused for the benefit of the accused. 8. By final judgment of 28 February 2013 the High Court of Cassation and Justice convicted the applicant on conspiracy charges, sentencing him to three years, four months ’ imprisonment. 9. Meanwhile, in November 2012, the applicant had been diagnosed with prostate cancer. At that time the illness had already reached an advanced stage and the applicant displayed bone metastases, brain haematoma and intraocular haemorrhages. On 27 November 2012 the applicant had been admitted to the Bucharest Institute of Oncology, from which he had been discharged on 11 January 2013. From 14 to 18 January 2013 he had once again been admitted to hospital. He had undergone prostate surgery and begun chemotherapy. He had subsequently had several short stays in hospital. In January 2013 the diagnosis reached by the oncologist had emphasised the seriousness of the applicant ’ s condition. The prognosis was that he had a short time to live given that the disease had spread to the bone, for which condition the existing treatment was insufficient. On 26 February 2013 the applicant was examined by a medical board, which issued him with a certificate of severe disability. 10. On 28 February 2013 the applicant was taken into Bacău Hospital oncology department. His state had worsened and he was suffering from bone pain. The applicant continued his chemotherapy and remained in hospital until 4 March 2013, when he was handed over to police officers who had come to escort him to Bacău Prison where he was to begin serving his sentence. 11. On the same day the applicant, through the intermediary of his lawyer, applied to the Bacău County Court for an interruption of his prison sentence on health grounds. He pointed out that since he could not receive his treatment in prison, his life would be in danger. 12. On 27 March 2013 he was transferred to the Rahova Prison Hospital. On 5 April 2013 he returned to Bacău Prison. On 15 April 2013 he was readmitted to the Rahova Prison Hospital, and then transferred back to Bacău prison on 28 May 2013. 13. The court commissioned a report on the applicant ’ s condition from a board of the National Institute of Forensic Medicine. At the board ’ s request, the applicant underwent several medical examinations, which showed that his condition required radiotherapy sessions and further chemotherapy. Furthermore, it transpired from the medical documents made available to the committee that the applicant had had chemotherapy sessions at Bacău Hospital on 12 April 2013 and at the Bucharest Institute of Oncology on 10 and 17 May 2013. 14. In its report of 19 June 2013 the board concluded that the applicant ’ s survival depended on the medical care with which he was being provided and a complex form of treatment which he could only receive in specialised clinics operating under the Ministry of Health. Consequently, it considered that the court had to order either an interruption of the applicant ’ s sentence or his hospitalisation under supervision in one of the aforementioned establishments. 15. On 25 June 2013 the court allowed the applicant ’ s request and ordered a three-month interruption of his sentence. Having regard to the seriousness of the applicant ’ s illness, it ruled that hospitalisation under supervision would considerably reduce his chances of survival and recovery owing to the stress and mental suffering caused by the continued execution of his sentence. Moreover, the court emphasised that the applicant posed no threat to public order, that the sentence, one third of which had already been served, was reasonably short and that the applicant ’ s conduct had been good throughout the criminal proceedings. The prosecution appealed. 16. The applicant was released on the same day. On 4 and 19 July 2013 he underwent chemotherapy at Bacău Hospital and continued the treatment on 1 and 16 August 2013 at the Bucharest Institute of Oncology. 17. On 29 August 2013 the Bacău Court of Appeal considered the prosecution appeal. By final judgment delivered the same day, it allowed the appeal and dismissed the applicant ’ s request. Relying on Articles 455 and 453 of the Code of Criminal Procedure ( hereafter “the CPP ” - see paragraph 34 below ), the Court of Appeal ruled that the interruption of the applicant ’ s sentence was unjustified provided that his treatment could continue, under guard, in a civil hospital. In a dissenting opinion, one of the judges on the trial bench considered that the sentence should be interrupted on humanitarian grounds; consequently, having regard to the applicant ’ s condition, he considered that his continued detention was in breach of the proportionality principle and reduced his chances of survival. 18. On 31 August 2013 the applicant was imprisoned in Bacău to serve his sentence. On 24 September 2013 he was transferred to Vaslui Prison. On 27 September 2013 he was admitted to the Rahova Prison hospital. On 3 October 2013 he returned to Vaslui Prison. 19. On 4 October 2013 the applicant was admitted to Târgu Ocna Prison hospital, diagnosed with “prostatic neoplasia with bone and brain metastases”. On the same day, noting the deterioration in the applicant ’ s general condition, a multidisciplinary team from the Târgu Ocna Prison hospital placed a prisoner on constant standby to assist the applicant in his everyday activities. That prisoner reportedly assisted the applicant up until the day of his last transfer to Bacău Hospital ( see paragraph 28 below ). 20. On 9 October 2013 the applicant was once again transferred to Bacău Prison, from whence he was taken, on the same day, to the Bacău Hospital oncology department. He was unable to move, was suffering from severe bone pain and had almost completely lost his sight and hearing. Furthermore, he was also showing signs of severe depression. His condition was so severe that he could no longer undergo chemotherapy, which was replaced by palliative care. 21. The applicant remained in the Bacău Hospital oncology department until 24 October 2013, when he was transferred to Iaşi Prison. On 28 October 2013 he was taken into the Iaşi Regional Institute of Oncology for five palliative radiotherapy sessions geared to alleviating his bone pain. He remained in the institute until 1 November 2013. He lost his sight completely and his depression continued. 22. On 5 November 2013 he was transferred to Vaslui Prison. On 6 November 2013 he was admitted to the Târgu Ocna Prison hospital where he stayed until 12 November 2013, when he was transferred to Bacău Prison. 23. On 22 November 2013 the judge delegated to Bacău Prison granted the applicant the most favourable possible detention regime, allowing him to move around inside prison and to take part in outdoor activities unsupervised. 24. Still on 22 November 2013, the applicant was admitted to the Bacău Hospital oncology department. The senior medical officer said that the applicant ’ s condition could deteriorate suddenly and that he therefore needed round-the-clock medical care. From 25 to 27 November 2013 the applicant received palliative care in the same hospital before being transferred to Bacău Prison and then to the Târgu Ocna Prison hospital. 25. In reply to a request from the applicant to be released on licence, the Prison Director told him that his request would be examined in 2015. 26. The applicant wrote to the President of the Romanian Republic and the Director of Târgu Ocna Prison to request their assistance regarding his release. He explained that he was dying and that he wanted to have his family present. He pointed out that he was now bedridden, blind and deaf, and that there was no one in prison to assist him in his everyday activities. He added that the doctors had been reluctant to treat him because had was keep under guard and in handcuffs. 27. The National Administration of Prison Authorities replied that only a court could order his release. 28. On 4 December 2013 the applicant was transferred to Bacău Prison and then to Bacău Hospital, where he remained until 7 December 2013. On that date he was transferred to the Târgu Ocna Prison Hospital. On 19 December 2013 he returned to Bacău Prison and the same day was admitted to the Bacău Hospital oncology department. He died there on 24 December 2013. B. The medical reports supplied by the hospitals 29. It transpires from the medical files included in the case file that between 24 January 2013 and 24 December 2013, the date of his death, the applicant was admitted to Bacău hospital eighteen times, including several hospital stays lasting several days. During those stays he had some fifteen chemotherapy sessions, usually at fortnightly intervals : prior to 24 October 2013 in the framework of the cancer treatment, and after that date, in the framework of palliative treatment. He also received various types of treatment for the illnesses caused by the metastatic progression of his prostate cancer. 30. In a report drawn up at the Government agent ’ s request, the senior medical officer at the Bacău Hospital oncology department highlighted certain dysfunctions in the administration of the treatment. Drawing on the medical files relating to the applicant ’ s stays in that hospital, he pointed out that on 14 March 2013 the applicant had begun the chemotherapy without having received the radiotherapy recommended by the doctors in his department. He added that the chemotherapy session scheduled for between 28 and 30 March 2013 had not taken place because the applicant had been absent, having been transferred to the Bucharest Institute of Oncology for examinations. Lastly, he noted that on 18 September 2013 the applicant had arrived late at the hospital to continue his chemotherapy. Furthermore, when the applicant had been hospitalised, he had been guarded by two police officers and had remained handcuffed to the bed, even after he had become blind and deaf and was suffering extreme bone pain. 31. In a report of 21 September 2015, the Iaşi Regional Institute of Oncology pointed out that between 28 October and 1 November 2013, the applicant had had five radiotherapy sessions, had kept the medical appointments made and had been neither handcuffed nor immobilised during those sessions. 32. In a report of 22 September 2015, the Bucharest Institute of Oncology pointed out that the applicant had been hospitalised several times in the institute between 27 November 2012 and 24 May 2013, primarily for chemotherapy. The institute ’ s senior medical officer stated in the report that the applicant had duly respected all his medical appointments and that during his stays at the institute he had not been constrained but had been guarded by prison officers. C. The applicant ’ s conditions of detention 33. According to the information provided by the prison authorities, the applicant had been held in Bacău Prison in a cell measuring 33 m 2, which he had shared with six other prisoners. At Rahova Prison hospital he had shared a 38- m 2 cell with four other prisoners. At Vaslui Prison, where he was held from 24 to 27 September, from 3 to 4 October and from 5 to 6 November 2013, he had occupied a 14 .75- m 2 cell with six other prisoners. At Târgu Ocna Prison hospital he had been held in a 48- m 2 cell with eight other prisoners. At Iaşi Prison he had remained from 24 October to 5 November 2013 in a 15 .92- m 2 cell with three other prisoners. | This case concerned the living conditions and care provided in prison to the applicant who was suffering from terminal metastatic prostate cancer. The applicant complained that his immobilisation in his hospital bed had amounted to inhuman treatment and that his state of health was incompatible with detention. He died after eight months in detention. |
562 | Refusal to recognise validity of Roma marriage for purposes of establishing entitlement to survivor’s pension | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1956 and lives in Madrid. 8. The applicant and M.D., both members of the Roma community, were married in November 1971 according to their community ’ s own rites. The marriage was solemnised in accordance with Roma customs and cultural traditions and was recognised by that community. For the Roma community, a marriage solemnised according to its customs gives rise to the usual social effects, to public recognition, to an obligation to live together and to all other rights and duties that are inherent in the institution of marriage. 9. The applicant had six children, who were registered in the family record book issued to the couple by the Spanish civil registration authorities ( Registro civil ) on 11 August 1983. 10. On 14 October 1986 the applicant and her family were granted first-category large-family status, under the number 28/2220/8, pursuant to the Large - Family Protection Act (Law no. 25/1971 of 19 June 1971 ). 11. On 24 December 2000 the applicant ’ s husband died. He was a builder and at the time of his death had been working and paying social security contributions for nineteen years, three months and eight days, supporting his wife ( registered as such ) and his six children as his dependants. He had been issued with a social security benefit card, stamped by Agency no. 7 of Madrid of the National Institute of Social Security ( Instituto Nacional de la Seguridad Social – “ the INSS ” ). 12. The applicant applied for a survivor ’ s pension. In a decision of 27 March 2001, the INSS refused to grant her one on the following ground : “[ she was] not and [had] never been the wife of the deceased prior to the date of death, as required by paragraph 2 of the seventh amendment to Law no. 30/1981 of 7 July 1981 ( in force at the material time ), combined with section 174 of the General Social Security Act [ Ley General de la Seguridad Social – “ the LGSS” ] approved by Royal Legislative Decree no. 1/1994 of 20 June 1994. ” 13. That decision was confirmed by a decision of the same Institute dated 10 May 2001. 14. The applicant filed a claim with the Labour Court. In a judgment dated 30 May 2002 of Labour Court no. 12 of Madrid, she was granted an entitlement to receive a survivor ’ s pension with a base rate of 903. 29 euros per month, her Roma marriage thus being recognised as having civil effects. The relevant part of the judgment read as follows : “ ... In our country the Roma minority ( etnia gitana ) has been present since time immemorial and it is known that this minority solemnises marriage according to rites and traditions that are legally binding on the parties. These marriages are not regarded as being contrary to morality or public order and are recognised socially. ... Article 61 of the Civil Code provides that marriage has civil effects from the time it is solemnised but that it must be registered in the Civil Register if those effects are to be recognised. Roma marriages are not registered in the Civil Register because they have not been regarded by the State as a feature of the ethnic culture which has existed in our country for centuries. ... The argument relied upon against the applicant in order to deny her a survivor ’ s pension is solely the non-recognition of the civil effects of her marriage to the insured person ( a working man of Spanish nationality with rights and obligations governed by domestic and European Community law ), notwithstanding the fact that Spain has ratified the United Nations International Convention on the Elimination of All Forms of Racial Discrimination of 7 March 1966. ... The lack of regulation of the recognition of the civil effects of Roma marriage cannot hinder the protective action to which the State has committed itself by laying down social security norms. ... Directive 2000/43/ EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin is applicable to the present case, where the denied benefit derives from the employment relationship of the insured person, who died from natural causes while he was still working. ... Article 4 § 1 of the Civil Code states [that] ‘ norms are applied mutatis mutandis where they do not specifically contemplate the case in question but a comparable one which can be regarded as having a similar object ’. Such application mutatis mutandis is applicable to the present case. ... The applicant ’ s marriage is not registered in the Civil Register, although that is not expressly ruled out. It is not recognised as having civil effects or as giving rise to the enjoyment of social protection by the survivor on the death of either spouse. Roma marriage is not covered by Spanish legislation, in spite of that ethnic minority ’ s social and cultural roots in our country. However, as noted above, marriages solemnised according to certain religious rites and customs that were, until quite recently, foreign to our society, [ do ] have a legal framework. These are therefore similar cases, albeit that it is not a religion that is concerned here. They have a similar object (community of cultures and customs present within the Spanish State ). The refusal by the INSS to grant the applicant a survivor ’ s pension, the sole obstacle being that the marriage between the widow and the deceased is not recognised, reveals discriminatory treatment on grounds of ethnic affiliation in breach of Article 14 of the Spanish Constitution and Directive 2000/43/ EC. ” 15. The INSS appealed. In a judgment of 7 November 2002, the Madrid Higher Court of Justice quashed the impugned judgment, giving the following reasons : “... It should be noted that the principle of equality and non-discrimination is based on the idea that equal situations should be treated equally and on [ the idea ] that equal treatment applied to situations which are not equal constitutes injustice. This also means that the law applicable to all should not be departed from in such a manner [ as to enable ] the creation of more exceptions than those that are expressly contemplated in that law. ... A distinction must be made between the legislation that is in force and is applicable at all times and what may be considered desirable by a given sector of society. ... Under the provisions of Article 49 of the Civil Code, every Spanish national ( such as the applicant and the deceased ) may opt for a civil marriage before a magistrate, a mayor or a public official designated [ by that Code], or for a religious marriage as provided for by law. ... In accordance with the foregoing, if a civil marriage is to be solemnised through regulated formalities, that must also be the case for a religious marriage, whose formalities will be those of the religious denomination – such formalities being laid down by the State, or otherwise accepted by its legislation. [ It will be in such circumstances ] that the marriage produces civil effects. ... A marriage solemnised solely and exclusively according to Roma rites is not covered by any of the above-mentioned cases, as even though an ethnic group is concerned, the norms or formalities of that group do not produce any legal effect outside its own environment and are not enshrined in the law that provides for the impugned pension. [ Such a marriage ], which is certainly meaningful and enjoys social recognition in the environment concerned, does not exclude, and currently does not supersede, the law that is in force and is applicable to the present case, in so far as it concerns a marriage between Spanish nationals that took place in Spain. An ethnic group, moreover, is merely a group which is differentiated on grounds of race ... and a rite is merely a custom or ceremony. ... As far as customs are concerned, under Article 1 § 3 of the Civil Code they only apply in the absence of an applicable law. ... The morality of the rite or its conformity with public order are not called into question, but only its capacity to produce erga omnes obligations, whereas in Spain there are statutory norms governing marriage. The answer, clearly, can only be in the negative. ... A marriage, in order to produce civil effects, can only be one that is solemnised civilly or religiously according to the terms set out above. Roma marriage does not correspond, in the current framework of our law, to the nature of the marriages referred to above. Section 174 of the LGSS requires that a person be the spouse of the deceased in order to benefit from the survivor ’ s pension, and the notion of spouse has been interpreted strictly according to an established constitutional and ordinary case-law ( in spite of dissenting views), according to which a couple living together de facto as husband and wife and many others who, in reality, are not married under the applicable law, are excluded from the benefit of that pension. ” 16. The applicant lodged an amparo appeal with the Constitutional Court, relying on the principle of non-discrimination in terms of race and social condition. In a judgment of 16 April 2007, the Constitutional Court dismissed the appeal as follows: “ ... The court, in a plenary sitting, reiterated ... the reasons for concluding that to limit the survivor ’ s pension to cases of institutionalised cohabitation as husband and wife, excluding other forms of partnership or cohabitation, did not constitute discrimination on social grounds. In this connection, it was submitted that the legislature retained a significant degree of discretion in determining the configuration of the social security system and in assessing the socio -economic circumstances in a context of the administration of limited resources with a view to addressing a large number of social needs, bearing in mind that an entitlement to a survivor ’ s pension was not strictly conditional, in a contribution-related system, on an actual situation of necessity or economic dependence, or even unfitness for work, in the case of the surviving spouse. In any event, the plenary court also commented on the fact that the extension, by the legislature, of the survivor ’ s pension to other forms of partnership was not prohibited by Article 14 of the Spanish Constitution either. ... A supposed discrimination on social grounds must be rejected for the reasons given above. ... No violation of Article 14 arises from the fact of limiting the survivor ’ s pension in practice to married couples. Similarly, no discriminatory treatment, whether direct or indirect, for racial or ethnic reasons, arises from the fact that the applicant ’ s partnership, in accordance with the rites and customs of the Roma community, has not been assimilated with marriage for the purposes of the said pension, and that the same legal rules as those applying to ‘ more uxorio ’ cohabitation have been applied to it. Firstly, ... the court reiterated that ‘ discrimination by absence of differentiation ’ did not arise from Article 14 of the Spanish Constitution, as the principle of equality did not afford a right to [differentiated ] treatment, nor did it protect the lack of distinction between different cases. There was thus no individual right to differentiated normative treatment. ... Secondly, the statutory requirement of a marital relationship as a condition for the enjoyment of a survivor ’ s pension, and the interpretation arising from the impugned decision, taking into account the marital relationship that stems from the legally recognised forms of access to marriage, and not any other forms of cohabitation, in particular partnerships according to Roma habits and customs – such requirement not being in any way related to racial or ethnic considerations, but to the fact [ for the interested parties ] of having freely chosen not to formalise marriage by recognised statutory, civil or religious procedures – never takes into consideration a person ’ s race or the customs of a given ethnic group to the detriment of others. As a result, there is no form of covert discrimination here against the Roma ethnic group. ... Lastly, the court must reject the idea that the recognition of the civil effects of a marital relationship created by certain specific religious rites, but not one that has been solemnised according to Roma rites and customs, and the refusal of the judicial body to accept the latter mutatis mutandis [...], may entail directly or indirectly, the alleged ethnic discrimination. ... To sum up, in view of the fact that the law establishes a general possibility – neutral from a racial and ethnic point of view – of marrying in the civil form, and that the legislature, in deciding to attach statutory effects to other forms of accession to a marital relationship, did so exclusively on the basis of religious considerations and thus without reference to any ethnic grounds, no discriminatory treatment with an ethnic connotation, as alleged, may be found. ” 17. A dissenting opinion was appended to the judgment. It referred to judgment no. 199/2004, in which the Constitutional Court had found a violation of the right to equality in a case concerning the widower of a civil servant, after finding that a marital relationship existed but not a marriage, since it had not been registered civilly, the parties having expressly refused such registration of their marital relationship which had been solemnised in a religious form. 18. For the dissenting judge, that case of a surviving spouse from an unregistered religious marriage was comparable to that of the applicant, in that the two claimants had applied for a survivor ’ s pension on the basis of what they considered to be a marital relationship, albeit that it had not been registered civilly. 19. Furthermore, the dissenting judge pointed out that, even though Spain was a party to the Framework Convention for the Protection of National Minorities, which it signed at Strasbourg on 1 February 1995, the case-law of the Constitutional Court did not take into account the rites, practices or customs of a specific ethnic group, nor did it regard as valid and subject to constitutional protection the acts of individuals belonging to minorities who sought respect for their cultural traditions. 20. According to the dissenting judge, the situation presented in this amparo appeal showed, for the first time, that the protection of minorities had a much broader constitutional significance than simply the response received by the applicant. The applicant should not have been obliged to take her case to a supranational body in order to obtain the protection claimed. In cases concerning the protection of ethnic minorities, the guarantee of equality required measures of positive discrimination in favour of the underprivileged minority, and respect, with the appropriate sensitivity, for the subjective value that a person belonging to such a minority accorded and required as regards respect for its traditions and the heritage of its cultural identity. The dissenting judge concluded as follows : “It is disproportionate for the Spanish State, which took into consideration the applicant and her Roma family by issuing them with a family record book, granting them large-family status, affording health- care assistance to her and her six children and collecting the corresponding contributions from her Roma husband for nineteen years, three months and eight days, now to refuse to recognise the Roma marriage when it comes to the survivor ’ s pension.” 21. On 3 December 2008, under the third amendment of Law no. 40/2007 of 4 December 2007 pertaining to certain social security measures, the applicant was granted a survivor ’ s pension with effect from 1 January 2007, as the partner of M.D. | The applicant, a Spanish national belonging to the Roma community, married in 1971 according to the Roma community’s own rites. Her husband, also a Spanish national and a member of that community, died in 2000. She then applied for a survivor’s pension but it was refused. The applicant complained in particular about the authorities’ refusal to grant her a survivor’s pension on the ground that her marriage had no civil effects under Spanish law. |
1,065 | Right to a fair trial (Article 6 of the Convention) | I. circumstances of the case A. Background to the case 7. The applicants are all Swiss nationals who live in the Canton of Zurich. They are the widow and sons of the late Mr P., who died on 28 February 1984. Mr P. had been the sole shareholder of a construction company, and the applicants were Mr P.’s only heirs. The company’s business was carried on by Mr P.’s sons. 8. An inventory of Mr P.’s estate was drawn up by the municipal authorities on 8 May 1984. A copy of that document in the Commission’s file is dated 17 May 1984. 9. The three-month period within which the applicants could have renounced the inheritance (Articles 566 § 1 and 567 § 1 of the Swiss Civil Code – see paragraph 24 below) apparently expired on 28 May 1984. 10. Between 1 and 3 October 1985 the tax authorities examined the books kept by the company. Their inspection showed that over a period of several years Mr P. had appropriated certain back payments due to the company and failed to declare them as income, thus evading both cantonal and federal taxes. 11. The cantonal and federal tax authorities each initiated proceedings against the applicants for recovery of the unpaid taxes and at the same time imposed fines for tax evasion. 12. It appears that the applicants cooperated with the tax authorities by providing them with the information needed to calculate the correct assessments. However, they resisted the imposition of the fines and appealed to the appropriate tribunals, maintaining that they were innocent of the tax offence committed by Mr P. 13. The cantonal proceedings ended on 2 November 1989 with a judgment of the Canton of Zurich Administrative Court. The Administrative Court considered that it was a principle of criminal law in a State based on the rule of law that the innocent should not be punished, and – departing from its earlier case-law – held that the imposition of fines on the heirs for tax evasion by the deceased was accordingly illegal. B. The federal proceedings 14. On 16 January 1990 the Direct Federal Tax Department of the Zurich Cantonal Tax Office, deciding on an objection lodged by the applicants, issued an assessment of the direct federal tax unlawfully withheld by Mr P. over 1981/82 and 1983/84 and imposed fines on the applicants. The fines came to 3,875.85 Swiss francs (CHF) for 1981/82 and CHF 2,882.90 for 1983/84. Its reasoning included the following: “By incorrectly declaring his income, the taxpayer withheld taxes from the State and thus became guilty of tax evasion. Pursuant to Articles 130 § 1 and 129 § 1, respectively, of the Ordinance on Direct Federal Tax his heirs must therefore pay a fine of up to four times the amount in addition to the tax withheld. For the tax period 1981/82, when more than 5/10 was evaded, the fine amounts to 1.5 times the amount, and for the tax period 1983/84, when more than 3/10 was evaded, it amounts to 1.3 times the amount of the taxes withheld. However, as it can be observed that the heirs have done everything possible to clarify the incorrect declaration of taxes, the fine is reduced to 1/4.” The Cantonal Tax Office declined to follow the precedent set by the judgment of the Zurich Administrative Court on 2 November 1989 (see paragraph 13 above) on the ground that it could not deviate from clear provisions of federal law as long as the unconstitutional nature of those provisions had not been clearly established. 15. The applicants lodged an appeal against this decision with the Federal Tax Appeals Board of the Canton of Zurich, relying inter alia on Article 6 § 2 of the Convention. 16. The Federal Tax Appeals Board gave its decision on 19 September 1990. The assessment for 1981–82 was quashed on the ground that it had not been lawfully communicated to the applicants within the five-year limitation period (Article 134 of the Ordinance on Direct Federal Tax). The assessment for 1983–84 was upheld. In this context, the Federal Tax Appeals Board held that Article 6 § 2 could be relied on directly only in so far as it provided guarantees additional to those under the Federal Constitution – which it did not. In an obiter dictum the Federal Tax Appeals Board made a distinction between the presumption of innocence and the principle that only the guilty should be punished. The heirs’ liability to pay fines incurred by the taxpayer, which did not offend against the latter principle — as construed in domestic law and applied to the deceased — did not necessarily offend against the former presumption either. 17. The applicants lodged an administrative-law appeal with the Federal Court on 21 December 1990. In addition to reiterating their complaints concerning the fines, they argued that they were entitled, under Article 6 §§ 1 and 3 of the Convention, to a public hearing and to the rights of the defence. 18. The Zurich Federal Tax Appeals Board and the federal tax authorities, which had been invited to submit written comments pursuant to section 110 of the Federal Judicature Act (see paragraph 28 below), expressed the opinion that the appeal should be dismissed. The Direct Federal Tax Department of the Zurich Cantonal Tax Office, which had also been invited to submit comments, declined to do so. 19. The Federal Court dismissed the appeal without a hearing (section 109 of the Federal Judicature Act (see paragraph 29 below) in a judgment delivered on 5 July 1991 and served on the applicants on 16 October. Its reasoning included the following: “Unlike back tax, the fine for tax evasion (save in so far as it may comprise interest intended to compensate for delay) pursuant to Article 129 of the Ordinance on Direct Federal Tax is penal in character ... Moreover, the definition of tax evasion requires that the taxpayer should be guilty, whether by commission or by omission, of a breach of duty resulting in his being underassessed for tax. However, according to the principle that heirs inherit tax liabilities ... the latter are liable, under Article 130 § 1 of the Ordinance on Direct Federal Tax, up to the amount of their share in the estate, and irrespective of any personal guilt, for the deceased person’s evaded taxes and the fines. The provision in question of the Ordinance on Direct Federal Tax thus expressly contemplates that the heirs enter into the position of the deceased even in respect of the penal tax without being personally guilty. It follows that as regards the liability of heirs, the applicants cannot derive any argument from the presumption of innocence enshrined in Article 6 of the Convention, which only applies to persons charged with a criminal offence ... Nor can the general principles of the criminal law prayed in aid by the applicants avail them in the circumstances.” The Federal Court did not rule on the applicants’ claims under Article 6 §§ 1 and 3. | The applicants were the widow and sons of the sole shareholder of a construction company who died in 1984. They were his only heirs. The period within which they could have renounced the inheritance expired in May 1984. It subsequently turned out that the deceased had evaded paying certain taxes and the tax authorities initiated proceedings against the applicants. In 1990 the Direct Federal Tax Department ordered them to pay the deceased’s unpaid taxes and also fined them. The applicants alleged in particular that, irrespective of any personal guilt, they had been convicted of an offence allegedly committed by someone else. |
940 | Principle of impartiality | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 7. The applicant is a Belgian citizen born in 1926. He lives in Brussels and is a sales manager. 8. On 4 April 1977, he was arrested by the police at his home and taken to Oudenaarde where he was questioned in connection with a car theft. Warrants of arrest for forgery and uttering forged documents were issued against the applicant on the following day, on 6 May and on 23 September 1977. The first warrant - notice no. 10.971/76 - was issued by Mr. Pilate, an investigating judge at the Oudenaarde criminal court (tribunal correctionnel ), and the second and third - notices nos. 3136/77 and 6622/77 - by Mr. Van Kerkhoven, the other investigating judge at the same court. 9. Prior to that, in the capacity of judge ( juge assesseur ) of the same court sitting either on appeal (judgment of 3 May 1968) or at first instance (judgments of 17 January, 7 March and 28 November 1969), Mr. Pilate had already dealt with criminal proceedings brought against Mr. De Cubber in connection with a number of offences; those proceedings had led variously to an unconditional or conditional discharge (relaxe) (17 January and 7 March 1969, respectively) or to conviction. More recently, Mr. Pilate had had to examine, in his capacity of investigating judge, a criminal complaint filed by Mr. De Cubber ( 16 November 1973 ) and, in his capacity of judge dealing with the attachment of property ( juge des saisies ), certain civil cases concerning him (1974-1976). In regard to each of these cases, the applicant had applied to the Court of Cassation to have the case removed, on the ground of bias (suspicion légitime; Article 648 of the Judicial Code), from Mr. Pilate or from the Oudenaarde court as a whole; each of these requests had been held inadmissible or unfounded. 10. At the outset Mr. Van Kerkhoven dealt with cases nos. 3136/77 and 6622/77 but he was on several occasions prevented by illness from attending his chambers. He was replaced, initially on an occasional and temporary basis and, as from October 1977, on a permanent basis, by Mr. Pilate, who retained responsibility for case no. 10.971/76. 11. In case no. 6622/77, a single-judge chamber of the Oudenaarde court (Mr. De Wynter ) sentenced Mr. De Cubber on 11 May 1978 to one year ’ s imprisonment and a fine of 4,000 BF. He did not appeal against this decision. 12. After preliminary investigations lasting more than two years, a chamber of the court (the chambre du conseil ) ordered the joinder of cases nos. 10.971/76 and 3136/77 and on 11 May 1979 committed Mr. De Cubber for trial. These cases related to several hundred alleged offences committed by fifteen accused, headed by the applicant; there were no less than nineteen persons intervening to claim damages (parties civiles ). For the purpose of the trial, the court, which over the years had nine or ten titular judges, sat as a chamber composed of a president and two judges, including Mr. Pilate. Mr. De Cubber stated that he protested orally against the latter ’ s presence, but he did not have recourse to any of the legal remedies open to him for this purpose, such as a formal challenge ( procédure de récusation; Article 828 of the Judicial Code). After a hearing which lasted two half-days on 8 and 22 June 1979, the court gave judgment on 29 June 1979. Mr. De Cubber was acquitted on two counts and convicted on the remainder, note being taken of the fact that he was a recidivist. He was accordingly sentenced, in respect of one matter, to five years ’ imprisonment and a fine of 60,000 BF and, in respect of another, to one year ’ s imprisonment and a fine of 8,000 BF; his immediate arrest was ordered. 13. Both the applicant and the public prosecutor ’ s department appealed. On 4 February 1980, the Ghent Court of Appeal reduced the first sentence to three years ’ imprisonment and a fine of 20,000 BF and upheld the second. In addition, it unanimously imposed a third sentence, namely one month ’ s imprisonment and a fiscal fine ( amende fiscale ), for offences which the Oudenaarde court had - wrongly, in the Court of Appeal ’ s view - treated as being linked with others by reason of a single criminal intent. 14. Mr. De Cubber appealed to the Court of Cassation, raising some ten different points of law. One of his grounds, based on Article 292 of the Judicial Code (see paragraph 19 below) and Article 6 para. 1 (art. 6-1) of the Convention, was that Mr. Pilate had been both judge and party in the case since after conducting the preliminary investigation he had acted as one of the trial judges. The Court of Cassation gave judgment on 15 April 1980 ( Pasicrisie 1980, I, pp. 1006-1011). It held that this combination of functions violated neither Article 292 of the Judicial Code nor any other legal provision - such as Article 6 para. 1 (art. 6-1) of the Convention - nor the rights of the defence. On the other hand, the Court of Cassation upheld a plea concerning the confiscation of certain items of evidence and, to this extent, referred the case back to the Antwerp Court of Appeal; the latter court has in the meantime (on 4 November 1981) directed that the items in question be returned. The Court of Cassation also quashed, of its own motion and without referring the case back, the decision under appeal in so far as the appellant had been sentenced to a fiscal fine. The remainder of the appeal was dismissed. | The applicant alleged in particular that the criminal court that had given judgment on the charges against him had not constituted an impartial tribunal, since one of the judges had previously acted as investigating judge in the same case. |
809 | Legal capacity | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1990. A. Background to the case 6. The applicant is a man who is intellectually disabled. On 14 February 2001 he was taken, with his two brothers, into public care by the child welfare authorities and placed temporarily with a foster family with whom they had already been living since August 2000. The foster family lived in a village situated about 50 km from the applicant ’ s home town, which is in the South of Finland. 7. In June 2006 the foster family, the applicant and one of his brothers moved to a village in the North of Finland. The removal of the children was not authorised by the competent child welfare authority. In June 2007 the applicant finished his compulsory school education as a special needs student integrated into a normal school. Thereafter his foster parents planned to place him in a vocational school some 300 km away from their village, without authorisation by the competent child welfare authority. 8. On 11 July 2007 the competent child welfare authority decided to remove the applicant from the foster family and to place him in a disabled children ’ s home in his home town in southern Finland. The authority found that the foster care had not been satisfactory in the light of the fact that the foster parents had made important decisions without consulting the child welfare authorities, such as moving north and planning to place the applicant in a vocational school 300 km away from their home. The foster parents brought an appeal in court against that decision, but the decision was upheld by the Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) on 18 February 2008 and subsequently by the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen ) on 10 December 2008. 9. On 31 July 2007 the applicant was placed in a children ’ s home in his home town in southern Finland. One of his brothers was placed in the same home in the autumn of 2007. 10. On 23 July 2008 the applicant turned 18. On 13 August 2008 he began studying at a local vocational school. On 4 November 2008 a mentor ( edunvalvoja, intressebevakare ) was appointed for the applicant for matters other than those pertaining to his person. The applicant could thus freely make his own decisions in matters pertaining to his own person. 11. On 30 December 2008 the social welfare authorities requested the District Court ( käräjäoikeus, tingsrätten ) to appoint a mentor for the applicant also for matters pertaining to his person. The request was, inter alia, based on the fact that a conflict had emerged between the child welfare service and the applicant ’ s former foster parents as to where the applicant should live. The appointment of an external mentor was therefore needed in order to assess the applicant ’ s best interests and settle the matter accordingly. The applicant as well as his biological parents were heard before the court and none of them objected to the appointment of such a mentor. 12. On 25 January 2009 the former foster parents took the applicant to the North of Finland, invoking his decision to move there to live with them. He considered them to be his real family. The next day, the social welfare authorities arrived with the police to fetch the applicant and to take him back, against his will, to his home town. He was placed in his home town in a special living unit for intellectually disabled adults. 13. On 18 June 2009 the District Court, on the basis of the Guardianship Service Act, appointed a mentor for the applicant in matters concerning his property and economy, as well as matters pertaining to his person to the extent that the applicant was unable to understand their significance. The court found that, owing to his diminished mental faculties, the applicant was incapable of looking after his own interests and taking care of his personal affairs. The decision was based on medical records concerning the applicant ’ s level of development and on submissions according to which the applicant was gullible and keen on small children ’ s play. The appointed mentor was an official of the local public legal aid office entrusted with functions of this kind. 14. On 7 February 2011, after having received a psychologist ’ s report dated 26 November 2010 on the applicant, the appointed mentor decided, against the applicant ’ s will, that it was in his best interests for him to live in his home town, where his family members also lived. He had better educational and work opportunities there than in the village in the North of Finland, where he only knew his elderly former foster parents. The applicant was given a possibility to go for holidays to his foster parents in the North of Finland. B. Impugned proceedings 15. On 8 April 2011 the applicant asked the District Court to discharge the mentor appointed for him from her duties as far as matters pertaining to his place of residence and education were concerned. He requested that another person of his choosing be appointed as his mentor in those matters. 16. On 22 June 2011 the District Court, having heard the applicant in person, as well as witnesses including the applicant ’ s mentor, his former foster mother, his brother and two staff members from his housing service, refused his request. In its judgment, the court put on record the various testimonies. According to the record of the testimony of the applicant ’ s mentor, she had discussed with the applicant his plan to move prior to her decision. The mentor was of the view that the applicant did not understand all the consequences of the plan, and did not realise that the good things in his present situation would not be relocated with him. In the light of all the circumstances, the mentor considered that the move would have been against the applicant ’ s interests. 17. As regards the facts, the court recalled the background of the previous decision, taken on 18 June 2009 (see paragraphs 11 and 13 above). The court further noted that, according to an expert evaluation dated 26 November 2010 and established by a psychologist, the applicant ’ s decision-making skills were equal to those of a child aged between six and nine years. Consequently, the evaluation concluded that the applicant was not able to consider whether his plans about future were realistic and what consequences or implications they would have. The court noted that the applicant had told the court that he had no particular complaints about his current situation and that according to the witness statements he enjoyed his apartment and work in his home town. There was no evidence that the applicant ’ s situation in his home town was not good. The court found that the applicant clearly did not understand what it would be like to live in a remote part of the country, especially as he had previously lived there for only one year, and what the implications of the move would be for his situation. Moreover, the court found it uncertain how clear or strong the applicant ’ s will actually was, taking into account the evidence regarding his gullibility. It was likely that his opinion was influenced by that of the former foster parents. The applicant ’ s development had improved in his home town and he had been able to live in a special unit for intellectually disabled adults, to go to work and to cycle independently around town. The applicant had in his home town a support network consisting of relatives, friends and staff of the social welfare authorities, a job, hobbies and educational possibilities. Due to the remote and isolated location of the former foster parents ’ home, the applicant would miss out on all these possibilities if he were to move there. The court further noted that according to the plan, the applicant would attend a vocational school far away from his new home, requiring daily long-distance trips each school day, more specifically a 15 km taxi ride to a bus station followed by a 70 km bus transport, and the reverse after school. The court was in doubt as to whether it was reasonable to expect that the applicant could cope with such demands on a daily basis. 18. As matter of law, the District Court stated that as, on the evidence, the applicant was not able to understand the significance of the envisaged decision, the mentor was not required, or even permitted, to resolve the question of the applicant ’ s place of residence in accordance with the applicant ’ s own wishes. Under such circumstances the mentor was required to take the decision on the basis of an assessment of the applicant ’ s best interests. 19. Taking into account the evidence and the factual findings referred to above (see paragraph 17 above ), the District Court concluded that it was in the applicant ’ s best interests to remain in his home town. The mentor had not acted in breach of her powers and the District Court found no reason to replace the mentor by another person as regards matters concerning the applicant ’ s place of residence and his education. 20. On 15 July 2011 the applicant lodged an appeal with the Turku Court of Appeal ( hovioikeus, hovrätten ). He pointed out that the Finnish Constitution guaranteed everyone the right to choose their place of residence. Moreover, a mentor had to enjoy the confidence of his or her client, which was not so in the present case. 21. On 9 May 2012 the Turku Court of Appeal, after holding an oral hearing, rejected the applicant ’ s appeal and upheld the District Court ’ s decision by two votes to one. The Court of Appeal found no reason to deviate from the assessment of the evidence as conducted by the District Court and affirmed the conclusions reached by the latter. The dissenting judge found that the former foster mother had been the only adult with whom the applicant had had a long-standing and safe relationship in his life. The applicant had clearly understood the importance of this relationship in his life, he knew the former foster family and what life with them entailed, although he might not be able to understand all the implications of the envisaged move. When the applicant had been removed from the former foster family in 2007 and placed in a children ’ s home in Southern Finland, no specific reasons had been given as to why this measure had been in the applicant ’ s best interests. The decision taken subsequently by the mentor in February 2011 had merely confirmed the earlier decision. These decisions had created distrust between the applicant and his mentor. As both the present mentor and the proposed replacement were equally competent, the one who had the applicant ’ s trust should be chosen. 22. By a letter dated 6 July 2012 the applicant lodged an appeal with the Supreme Court ( korkein oikeus, högsta domstolen ), reiterating the grounds of appeal already submitted before the Appeal Court. 23. On 8 February 2013 the Supreme Court refused the applicant leave to appeal. C. The applicant ’ s current situation 24. According to the information provided by the Government, in July 2013 the applicant learned that his foster father had died and he attended his funeral in Northern Finland. From 2010 to 1 January 2015 the applicant resided in his home town in a block of flats providing special care for persons with intellectual disability. Since 2 January 2015 he has been residing in sheltered accommodation, in a small two-room flat. He is employed by his home town, undertaking work five days a week in a shelter for intellectually disabled people. He is a talkative, efficient and well-liked employee and fits in very well in the working community. 25. The applicant ’ s former foster mother is in contact with the applicant via telephone but the frequency of their contact is not known. She moved to the eastern part of Finland before Christmas 2015 and invited the applicant to spend Christmas with her, but in the end he decided not to visit her. Instead, the applicant spent Christmas with his brother and other relatives. According to the Government, the applicant has not discussed the possibility of moving elsewhere for a long time. He is happy with his work and plays floorball twice a week as a hobby. The applicant states that he has stopped talking about his desire to move since there is no point in doing so, given the fact that the social welfare authorities do not want him to leave his home town. Although he now has a girlfriend in his home town, he maintains that his true and most sincere wish is still to live with or near to his former foster mother. There is nothing in his home town that keeps him there or makes him want to stay there. II. Principles and measures to safeguard adults and children with disabilities against abuse 1. Protection of human rights Member States have a duty to protect the human rights and fundamental freedoms of all their citizens. They should ensure that people with disabilities are protected at least to the same extent as other citizens. Member States should recognise that abuse is a violation of human rights. People with disabilities should be safeguarded against deliberate and/or avoidable harm at least to the same extent as other citizens. Where people with disabilities are especially vulnerable, additional measures should be put in place to assure their safety. ” 48. The Council of Europe Disability Strategy 2017-2023 sets out, inter alia, the following: “3.4. Equal recognition before the law Equal recognition before the law, as defined among others by the UNCRPD (Article 12) refers to the two parts of legal capacity, the capacity to hold rights and duties and the capacity to act on them. Legal capacity and access to justice are essential to real participation in all areas of life and full inclusion of persons with disabilities in society. Legal capacity is in fact connected to all human rights and their enjoyment. ... States are required under the UNCRPD, as far as possible to replace substituted decision-making with systems of supported decision-making. Possible limitations on decision-making should be considered on an individual basis, be proportional and be restricted to the extent to which it is absolutely necessary. Limitations should not take place when less interfering means are sufficient in light of the situation, and accessible and effective legal safeguards must be provided to ensure that such measures are not abused. Council of Europe bodies, member States and other relevant stakeholders should seek to: a) Support member States in their efforts to improve their legislation, policies and practices with regard to ensuring legal capacity of persons with disabilities. b) Identify, collect and disseminate existing good practices on supported decision-making systems and practices that persons with disabilities have available for being able to exercise their legal capacity and have access to choices and rights. ” | This case concerned an intellectually disabled man’s complaint about the Finnish courts’ refusal to replace his court-appointed mentor, meaning that he has been prevented from deciding where and with whom he would like to live. His court-appointed mentor had previously decided that it was not in his best interests for him to move from his home town in the south of Finland to live in a remote village in the far north with his former foster parents. In the related court proceedings his request to replace the mentor was refused. |
203 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1950 and is currently serving a prison term in Lepoglava State Prison. 5. The documents in the case-file reveal the following facts. 1. The applicant ’ s arrest and police questioning 6. On 1 June 2004 at 6 a.m. six police officers from the Zagreb Police Department came to the applicant ’ s house in Križ and asked the applicant and his wife to accompany them. The applicant and his wife complied and were taken by police car to the Zagreb Police Department ( Policijska uprava zagrebačka ). 7. Shortly after 6 a.m. they arrived at the Zagreb Police Department in Heinzlova Street and the applicant was placed in the interview room. 8. A polygraph test of the applicant was carried out on 1 June 2004 between 11 a.m. and 6.15 p.m. The file does not contain documents which could clarify the applicant ’ s whereabouts or treatment at the police station during the initial twenty - five hours. It is undisputed, however, that the applicant remained at the police station. 9. A report on the applicant ’ s arrest drawn up by police officers states that the applicant was formally arrested at 7 a.m. on 2 June 2004 on suspicion of murdering one V.M., and was taken into police custody for twenty-four hours under Article 97 of the Code of Criminal Procedure (see “Relevant domestic law” below). The applicant was informed of his right to a defence lawyer and lawyer E.Z. was contacted on 2 June 2004 at 10 a.m., but did not come to the police station. The applicant signed the report without making any comments. 10. In the afternoon of 3 June 2004 the dead body of V.M. was found in a vineyard near the town of Kutina, which came under the jurisdiction of the Sisak County Court. An investigating judge of the Sisak County Court carried out the on-site inspection between 12.30 p.m. and 3.30. p.m. 11. According to the official record of the applicant ’ s police questioning in the Zagreb Police Department by police officer S.I., lawyer P.B. was called by the police at 11 p.m. on 3 June 2004 and arrived at the Zagreb Police Department at ten past midnight on 4 June 2004. The record of the questioning states that the questioning commenced at 25 minutes past midnight on 4 June 2004 and was completed at 2.30 a.m. the same day, with lawyer P.B. being present throughout. According to this record the applicant confessed that on 3 May 2004 during a fight with V.M. he had shot and killed the latter and then buried his dead body in a vineyard. The written record was signed by both the applicant and lawyer P.B. and also by S.I. and a typist. 2. Investigation and trial 12. On 4 June 2004 the Zagreb Police Department filed a criminal complaint against the applicant with the Zagreb County State Attorney ’ s Office and the investigating department of the Zagreb County Court, on charges of murdering V.M. The same day at 6.30 p.m. the applicant was brought before an investigating judge of the Zagreb County Court, in the presence of a defence lawyer chosen by the applicant who submitted a power of attorney to the investigating judge. The applicant decided to remain silent and merely stated that he had not called counsel P.B. to the Police Department. 13. After being heard by the investigating judge, the applicant was transferred to Zagreb County Prison. The medical record from the prison does not indicate any injuries on the applicant ’ s arrival. 14. On 7 June 2004 the applicant was again brought before the investigating judge, in the presence of his chosen counsel, and decided to remain silent. The investigating judge then ordered that the applicant be placed under investigation for murder. The applicant was placed in detention on remand. 15. On 13 July 2004 the investigating judge ordered a psychiatric examination of the applicant in order to ascertain his ability to understand his actions at the time when the criminal offence at issue was committed and his mental state during the police questioning. The report drawn up on 21 July 2004 found that the applicant was not suffering from any disorder capable of adversely affecting his capacity to answer the questions and that during the police questioning he had been fully conscious and mentally competent. The psychiatrist who drew up the report interviewed the applicant from 15 to 20 July 2004 and also based her conclusions on the police record of the applicant ’ s questioning. The psychiatric report was communicated to the applicant ’ s defence counsel. 16. On 14 July 2004 an officially appointed lawyer, M.K., was assigned to the applicant, since meanwhile his chosen lawyer ceased to represent him. 17. On 29 July 2004 the applicant was committed for trial on a charge of murder in the Velika Gorica County Court ( Županijski sud u Velikoj Gorici ). 18. On 4 August 2004 the applicant asked the Velika Gorica County Court to serve the decision of 30 July 2004, ordering his continued detention, on his officially appointed counsel, M.K. He also complained that he had not yet seen his officially appointed counsel. He further alleged that as early as 1 July 2004 he had asked to consult the case file and that his request had not been answered. 19. On 13 August 2004 the Velika Gorica County Court ordered Zagreb County Prison to bring the applicant to the Velika Gorica County Court on 19 August 2004 so that he could consult the case file. 20. On 22 August 2004 the applicant asked the Velika Gorica County Court to allow him to consult the case file because on 19 August, when he had been brought to the Velika Gorica County Court, he had been given only thirty minutes to consult the file. This had not been sufficient to enable him to read even one third of the documents in the file. On 1 September 2004 the Velika Gorica County Court ordered Zagreb County Prison to bring the applicant to its premises on 6 September 2004. 21. On 27 August 2004 the applicant complained to the judge responsible for the execution of sentences who was visiting the prison that he could not properly consult the case file. On 9 September 2004 the Velika Gorica County Court again ordered Zagreb County Prison to bring the applicant on 16 September 2004 to the premises of that court so that he could consult the case file. 22. On 19 October the applicant again asked the County Court for permission to consult the case file. On 27 October 2004 the presiding judge informed the applicant that his request had been refused since he had already consulted the case file twice. 23. The first hearing before the trial court was held on 8 December 2004 in the presence of the applicant and his counsel M.K. The applicant pleaded not guilty and made no other comments. 24. On 9 December 2004 the applicant asked the Velika Gorica County Court to order another psychiatric examination which would establish whether on the morning of 4 June 2004 he had known what he was signing at the police station (see § 11 above). He asserted that he had learned about the content of the statement he had supposedly made to the police only when he had consulted the case file on 16 September 2004. He alleged that at that time he had been suffering from diabetes and high blood pressure and had not been given his medication, had not been given any food for twenty hours and had not slept from 6 a.m. on 1 June 2004 until 11 p.m. on 4 June 2004. During the entire police questioning he had been forced to sit on a chair and the record of his alleged statement which he had signed had not been read out loud to him. He could not read it himself because he had not had his glasses. Furthermore, he alleged that he had been ill-treated and still had traces of injuries and asked to be seen by a medical doctor. 25. The applicant ’ s wife decided to avail herself of the right not to testify in the criminal proceedings against the applicant. 26. A hearing was again held on 28 December 2004 in the presence of both the applicant and his counsel. The psychiatrist who had written the report of 21 July 2004 (see § 1 6 above) on the applicant during the investigation gave her oral evidence. She stated, inter alia, that: “.. . the changes in blood pressure and blood sugar levels had no effect on the defendant ’ s ability to understand his actions. Likewise, these changes, if they happened at all, had no effect on his questioning by the police. If such changes were present, they were of a mild nature. Had there been any drastic changes, they would have caused altered levels of consciousness and possibly unconsciousness; no such occurrence was recorded in the case file. My opinion is that the statement given to the police is sound and that there are no indications that the defendant suffered from any mental disturbances during questioning.” 27. At the end of the hearing the applicant ’ s oral request for a further psychiatric examination aimed at establishing his mental state during the police questioning was rejected as being aimed at delaying the proceedings, since these issues had already been addressed by the psychiatrist at the hearing. 28. Further hearings were held on 3 February and 19 May 2005 in the presence of both the applicant and his counsel. 29. At the subsequent hearing held on 20 June 2005 the applicant, in the presence of his counsel, presented his defence. He denied the charges against him. As regards his questioning by the police he submitted that he remembered having been at the Zagreb Police Department but that he could not remember presenting his defence. He stated further that a lawyer had not been present although he had repeatedly asked the police officers for the questioning to be conducted in the presence of a defence lawyer. He had the telephone numbers of several lawyers listed on his mobile phone but had not been allowed to call any of them. At that time he had problems with his heart, high blood pressure and high levels of sugar and cholesterol in his blood. He remembered that he had signed something but had not known what it was. He had learned about it only on 16 September 2004 when he had consulted the case file. 30. When a power of attorney given to the lawyer P.B. was shown to the applicant he confirmed that it contained his signature. 31. He then proceeded to state that he remembered answering questions by the police officers, but could not remember what he had said. The police officers had insisted that he confess. He confirmed that the written record of the police questioning contained his signature. However, he also stated that he could not have read the documents he had signed at the police station because of his poor eyesight since during the police questioning he had had no glasses. They had been brought to him in prison on 14 June 2004. 32. With regard to the lawyer P.B., none of the police officers present had told him who that person was and P.B. had not addressed him at all. The only persons present at the police questioning had been the police officers and a young woman who typed the record of the questioning. 33. At the hearing held on 5 July 2005 the County Court heard evidence from lawyer P.B. The relevant part of his deposition reads as follows: “I agreed to be on the list of lawyers kept by the police who are willing to be called when suspects are being questioned by the police and such questioning might be used as evidence in the criminal proceedings. I don ’ t recall the exact date, but I remember that it was in 2004, the weather was warm and I was called sometime after midnight to go to the Zagreb Police Department in Heinzlova Street. I was told that a person suspected of murder was to be questioned and that I was needed as his defence lawyer. When I arrived I saw the accused immediately sign a power of attorney for me to represent him before the police. However, the police officers told me that the defendant had already been questioned and had confessed. I saw a handwritten record of the defendant ’ s deposition and it was then dictated to the typist. That was the defendant ’ s entire statement. He did not say anything in my presence. I only asked him whether he was sorry and whether the police had treated him correctly, that is to say whether any force had been used. The defendant denied that there had been any use of force. I did not read myself the handwritten record but, since I was sitting next to the police officer, as was the defendant, I saw that the officer was dictating from that handwritten record to the typist, who was typing on a computer. I was not served with a copy of the typed record of the defendant ’ s questioning because it is not the custom. Although the defendant had been questioned before my arrival I raised no objections in that respect. I would like to clarify that when the handwritten record was dictated to the typist, the police officer would sometimes repeat a question and ask the defendant whether it had truly been as he was dictating; neither the defendant nor I raised any objections. I did not ask the defendant any questions as regards the circumstances of the critical event because I was told that he had confessed, and he repeated his confession during further questioning when the written record was made. As regards the defence lawyer ’ s question, I may say that I did not speak with the defendant in private because there was no need for that since we all talked together, that is to say in the presence of the police officers. As to the defence lawyer ’ s further question, I did not inform the defendant of his rights, such as his right not to present a defence or answer any questions, because it was too late for that since he had already been questioned. The police officers gave him no information either. I would add that the defendant looked very tired and after the questioning in my presence, which lasted for an hour, he fell asleep at the table where he was sitting during the questioning, after he had eaten a sandwich and drunk a juice. I do not remember whether he had glasses. In reply to the question put by a member of the panel, I can say that the defendant raised no objections either as regards the record dictated by the police officer in his presence or as regards the police treatment when I asked him about it. As regards the question put by the defendant, I do not know what time he was taken to the police station and what time his questioning started.” 34. The applicant added that during the entire police questioning he had been half asleep and that the questioning had lasted the whole afternoon and evening before the arrival of lawyer P.B. 35. The trial court then issued a decision ordering that the record of the applicant ’ s police questioning be removed from the case file on the ground that the applicant had been questioned by the police without the presence of a defence lawyer, although the written record of the questioning “had been drawn up in such a way as to suggest that the defence lawyer was present.” This decision was quashed by the Supreme Court, on an appeal by the State Attorney, on 28 July 2005. The Supreme Court found that all relevant circumstances surrounding the applicant ’ s police questioning had not been established. 36. On 1 September 2005 the applicant asked the Velika Gorica County Court for permission to consult the case file before the hearing scheduled for 26 September 200 5 because some fresh witnesses were supposed to give evidence. The applicant also stated that he had had no contact with his appointed defence lawyer. This request was not answered. 37. At the hearing held on 26 September 2005 a police officer, S.I., who had questioned the applicant, gave his evidence. The relevant part of the record reads: “ ... his questioning as a suspect started on 4 June 2004. I conducted it and M.B. recorded it in writing. The questioning started some time after midnight because we were waiting for a defence lawyer. Therefore, it is wrongly stated in the written record of the questioning that it started at 12.25 p.m., because it started 25 minutes after midnight. Before the defence lawyer arrived I had talked to the accused and had made handwritten notes. The accused agreed to repeat what he had told me in the presence of his counsel. Therefore, I asked him to call a lawyer of his own choosing but the lawyer he chose was not available because he was away. He was then asked to choose a lawyer from our list of lawyers and he chose P.B., who came shortly after midnight and certainly before the questioning of the accused started. When the lawyer arrived he was able to talk in private with the accused and after that the questioning started. I emphatically confirm that the accused chose lawyer P.B. from the list of lawyers and that that lawyer was not called by the police. I remember that when the lawyer came into the room I told the accused that this was the lawyer he had chosen and I let them talk in private and after that the questioning started. When I talked informally to the accused and made my handwritten notes the typist was not present. She came in at the same time as the lawyer and when the formal questioning started. When the formal questioning started I did not dictate to the typist from my handwritten notes, but the accused repeated his statement and answered the questions. The accused gave his own account and I also asked him questions and he gave answers. I think that the defence lawyer also asked a few questions. As far as I remember there were no objections on the part of the accused or the lawyer, either during or after the questioning. I do not recall talking to the lawyer when he arrived at the police station, but I do not exclude that possibility. It is also possible that one of my colleagues may have talked to him. During questioning the accused appeared completely composed and I had the feeling that after giving his statement he felt relieved. In reply to the question by defence counsel I can say that after the defence lawyer arrived and before the accused started to present his defence, he had been informed of his right to remain silent and his right to a defence lawyer. The questioning was conducted in the presence of the typist M.B. and myself, but it is possible that some of my colleagues may have entered and exited the room. As far as I can recall the questioning lasted for about two hours, but I am not sure about that because a lot of time has elapsed since. I think that a copy of the written record was given to lawyer B., but I am not sure. In answer to the question by the presiding judge I can say that during the questioning in the presence of the defence lawyer I did use my handwritten notes but I did not dictate on the basis of those notes without questioning the accused again. The accused again gave an account of the entire incident and I asked questions on the basis of my handwritten notes. I am sure that during the questioning the accused was composed and did not appear sleepy and did not fall asleep. It is possible that he was yawning because it was quite late. In answer to the question by the accused I can say that neither I nor anyone else ill-treated him. At no time did the accused stay alone in the room; there were always some of the police officers present. After the questioning the written record was shown to the accused so that he could read it. I think that he only glanced at it and signed it. The defence lawyer also signed the record after the questioning. I do not remember whether there were any objections to the written record, although none was mentioned in the record.” 38. After that the typist M.B. gave her evidence. The relevant part of the record reads as follows: “ ... on the material occasion I was asked to go to the General Crimes Division to type the written record of the questioning of the suspect Josip Mađer. When I arrived I found the accused, my colleague S.I. and one lawyer ... Everything had been made ready for dictating and questioning. I remember that [police officer S.] I. informed the accused of his right to have defence counsel present during the questioning. It is possible that he also informed him of his other rights, but I do not remember that. I remember that during questioning the accused gave his statement and [police officer S.] I. dictated that statement to me. I saw that S.I. had his handwritten notes. I remember that [S.] I. asked the accused questions and the accused gave answers which [S.] I. dictated to me. I do not remember now how long the questioning lasted, possibly for about three hours. It is the usual practice that the written record is signed. I remember that I signed it, but I do not remember if anyone else also signed it. Because of the length of time which has elapsed I do not remember whether I or someone else signed the record. In answer to the question by the defence lawyer I can say that I do not remember whether a copy of the written record was given to the defence lawyer. I do remember that the lawyer was given a power of attorney but I cannot say anything more precise about it.” 39. The same day the trial court refused a request by the defence for the record of the applicant ’ s questioning by the police to be excluded from the case file. The relevant part of the decision reads as follows: “After hearing evidence from the witnesses P.B., S.I. and M.B. this panel has concluded that the written record of the questioning of the accused by the police on 4 June 2004 was drawn up after the accused had been questioned in the presence of his defence lawyer P.B., a lawyer practising in Zagreb, and after the accused had been informed [about his rights] under Article 225 §§ 2 and 3 of the Code of Criminal Procedure, and that as such [the statement given to the police] can be used as evidence in the criminal proceedings, as provided for by Article 177 § 5 of the Code of Criminal Procedure. Therefore, there is no statutory ground for the exclusion of that record from the case file. This court assessed the evidence given by witness S.I. who, as a police officer, conducted the questioning of the suspect Josip Mađer, as entirely reliable because his statement was convincing and realistic. He remembered the details of the questioning such as the fact that the suspect was asked to call a lawyer of his own choice, which the defendant attempted to do, only to find that the lawyer was not available. This is supported by the statement of the accused that he had the telephone numbers of several lawyers listed on his mobile phone, a statement which contributes to the credibility of the witness evidence. The evidence of that witness shows that the accused repeated his statement in the presence of a lawyer, after he had been informed of his right to present his defence or to remain silent and of his right to a lawyer, after he had previously been questioned without a lawyer, when handwritten notes were made. [The accused] answered questions by S.I. and [S.] I. used his handwritten notes. The evidence [given by witness S.I.] is corroborated by the evidence given by M.B. when she said that the accused had given his statement in the presence of a defence lawyer, which was then dictated to her by [S.] I., as well as answers to his questions. This court has no reason not to trust the evidence given by this witness because she, as an official who simply typed the written record, has no interest in the outcome of these criminal proceedings and no motive for giving evidence against the accused. The above witness evidence clearly shows that neither the accused nor the defence lawyer raised any objections, either during or after the questioning, as regards the manner of the questioning of the accused or the written record. This is also confirmed by the evidence given by P.B. The court has not put trust in the evidence given by witness P.B. because it is illogical, unrealistic and obviously aimed at attempting to exculpate the accused. It is not logical that P.B., as a lawyer and defence counsel of a defendant accused of a serious criminal offence, would not raise any objections as to the manner of questioning and recording before the police if such questioning had been conducted in contravention of the law, because his main duty as a defence lawyer was to ensure the lawfulness of the police procedure and the protection of the rights of the accused. In his evidence at the trial, when he was no longer the accused ’ s defence lawyer, he tried to call into question the lawfulness of the written record of the accused ’ s confession because, as a professional, he is aware of the significance of that record for the decision on the accused ’ s guilt. The above undoubtedly shows that the accused was questioned by the police in the presence of a defence lawyer. His statutory rights were ensured and a written record was drawn up which the accused and the defence lawyer both signed without raising any objections. The said record can therefore be used as evidence in the criminal proceedings under Article 177 § 5 of the Code of Criminal Procedure.” 40. On 11 October the defence lawyer, and on 13 October 2005 the applicant himself, lodged appeals against the decision of 26 September 2005. They argued that the applicant had been questioned by the police between 1 June 2004 at 6 a.m. and 4 June 2004 without the presence of his defence lawyer. They now argued that during that time he had not been allowed to sleep and had not been given any food or his medication. When finally the police officer dictated his alleged statement to the typist he had been asleep at the table. As to the presence of P.B., they argued that he had not been the applicant ’ s chosen lawyer but had been called by the police from the list of lawyers who had agreed to answer urgent calls by the police, as P.B. himself had stated. Furthermore, they pointed out that P.B. had said that he had been called by the police after midnight, whereas the written record of the questioning noted that he had been called at 11 p.m. and had arrived at ten minutes past midnight and that the questioning had started at twenty-five minutes past midnight. The questioning of the applicant by the police had ended at 2.30 a.m. Therefore, the lawyer had been present for about an hour, which would certainly not have been sufficient for the applicant to give his full statement and have it typed, since the written statement contained seven and a half pages. They further pointed to the part of P.B. ’ s statement according to which it was the usual practice of the Zagreb police to call defence lawyers after the questioning of suspects had already been completed. They also stressed that no copy of the written record of the applicant ’ s statement to the police had been given either to the applicant or to the defence lawyer. 41. On 3 November 2005 the Supreme Court dismissed the appeals. The relevant part of the decision reads as follows: “ ... the evidence from the case file, and in particular the written record of the questioning of the accused on 4 June 2004, show that the first-instance court correctly found that the accused had been questioned by the police in the presence of a defence lawyer to whom he had previously issued a power of attorney, and that his statutory defence rights were respected. A written record was drawn up to this effect, which was signed by the accused and the defence lawyer without any objections. The fact that the questioning of the accused was in accordance with the law was confirmed by the witnesses S.I., the police officer who questioned the accused and M.B., who typed the written record of the questioning. The first-instance court rightly accepted these witnesses ’ statements as truthful because they were logical and detailed, whereas it rightly did not believe the statement given by witness P.B. because it contradicted his own actions as a defence lawyer who was present during the questioning and signed the written record of it without raising any objections, and whose statement is obviously intended to favour the accused. The allegations in the appeal that the defendant was not allowed to choose his defence lawyer but that the latter was chosen by the police is unfounded in view of the evidence given by witness S.I. that he offered the accused the possibility of choosing a defence lawyer, which the latter attempted to do. The chosen lawyer had not been available, so he then chose P.B. as his defence lawyer from the list of lawyers and issued a power of attorney to him. This procedure is in accordance with Article 177 § 5 of the Code of Criminal Procedure, which provides that where the circumstances show that a chosen defence lawyer will be unable to arrive within three hours, the police should enable the suspect to choose another lawyer from the list of lawyers on duty for each county, compiled and submitted by the Croatian Bar Association to the police departments and county courts. ... The allegation by the accused that the defence lawyer was not present during his questioning and that the questioning took place before the arrival of the defence lawyer and was recorded by the police and dictated for the written record in the lawyer ’ s presence, is also unfounded. The notes made by the police are handwritten notes made by witness S.I. in his capacity as a police officer. He collected information from the suspect in accordance with Article 177 § 5 of the Code of Criminal Procedure, after which he waited until the arrival of the defence lawyer. The witness said that he used his handwritten notes during the questioning of the accused in the presence of the defence lawyer, which is not against the law, and that the suspect repeated his defence and answered the questions. ... ” 42. After the final hearing was held on 16 January 2006 the trial court, relying mainly on the applicant ’ s confession to the police, found him guilty of aggravated murder and sentenced him to twenty-eight years ’ imprisonment. At the same time his detention was extended. 43. On the same day the applicant asked that a new defence lawyer be assigned to him. He alleged that his officially assigned counsel had visited him only once, on 2 May 2005, the 333 rd day of his detention, and then only to ask for money. 44. On 18 January 2006 the applicant asked the Velika Gorica County Court for permission to consult the case file. On 22 January 2006 he asked that lawyer M.U. be allowed to consult the case file and visit him in prison so that he could lodge an appeal. On 13 February 2006 he informed the court that he had received the first-instance judgment and needed the assistance of a lawyer to file an appeal. 45. On 15 February 2006 the presiding judge informed the applicant that his requests of 18 and 22 January 2006 to consult the case file had been granted and fixed for 21 February 2006 with permission to consult the case file for two hours. The presiding judge refused the applicant ’ s request of 13 February 2006 for another defence counsel to be officially assigned to him, on the ground that the conditions for relieving the appointed counsel of his duties had not been met. The applicant was advised that he was free to appoint counsel of his own choosing. 46. On 19 February 2006 the applicant reiterated that he did not wish to be represented by lawyer M.K. On 20 February he again complained that lawyer M.K. had not visited him in prison and that he had had no contact with him. 47. On 21 February 2006 M.K. lodged an appeal against the first ‑ instance judgment on the applicant ’ s behalf. He argued that the judgment was based on the applicant ’ s confession given to the police without a defence lawyer being present. He reiterated all the previously stated arguments in that respect. 48. On the same day the presiding judge allowed the lawyers M.U., LJ.P. and S.E. to visit the applicant in prison. On 23 February 2006 M.U. submitted a power of attorney to represent the applicant. 49. On 27 February 2006 the applicant lodged an appeal against the first-instance judgment. He analysed in detail the outcome of the proceedings and also reiterated his previous allegations regarding his questioning at the police station, repeating his arguments from appeals of 11 and 13 October 2005 (see § 4 2 above). 50. On 15 March 2006 M.U. also lodged an appeal reiterating the same arguments regarding the applicant ’ s police questioning. 51. On 5 April 2006 the presiding judge relieved lawyer M.K. of his duties. 52. On 14 September 2006 the Supreme Court upheld the first-instance judgment. The relevant part of the appeal judgment reads as follows: “The accused ’ s defence rights were not violated because an infringement of Article 367 § 3 of the Code of Criminal Procedure can occur only during the trial and preparations for the trial, while what is complained of here are measures taken at the pre-trial stage of the criminal proceedings. Irrespective of the above, the right of the accused to a defence lawyer has not been violated. The case file shows that immediately after the accused had been arrested, the police officers, at his request, called lawyer E.Z., who could not come because he was abroad, and then lawyer V.M., who also did not come. The police then asked the accused to choose a lawyer from the list of duty lawyers submitted by the Croatian Bar Association for each county. The accused agreed and issued a power of attorney to lawyer P.B. Thus the requirements of Article 177 § 5 of the Code of Criminal Procedure were satisfied and it cannot be said that the applicant ’ s right to a lawyer of his own choice was denied. Whether that lawyer, who was present at the questioning and signed the written record without any objections, truly provided the accused with adequate legal assistance in accordance with the rules of the Bar Association and its code of ethics, is a question of the lawyer ’ s professional beliefs and ethics and not a matter for discussion by this court as regards the issue of the lawfulness of the evidence consisting of the defence presented by the accused before the police in the presence of his chosen defence lawyer. Further allegations in the appeal lodged by the lawyer M.U. concerning the supposed ill-treatment of the accused by the police and refusal to provide him with food and drink, which the accused interpreted as mental and physical pressure, have no basis either in the statements of the officials S.I. and M.B. or in the statement of the lawyer P.B., who said that the accused had eaten a sandwich and drunk a juice in front of him. Furthermore, the accused ’ s mental and physical state at the time of the police questioning was assessed by a psychiatrist, D.K.K., who concluded that, on the basis of the written record and the manner in which the accused expressed himself, nothing indicated that he had any mental problems during the questioning ... Hence, the allegations in the appeal that some kind of pressure or similar means were used during the accused ’ s police questioning in order to make him confess to the criminal offence are unfounded.” 53. On 3 July 2007 the applicant lodged a constitutional complaint, arguing that his right to a lawyer had been violated throughout the proceedings, and in particular during his questioning by the police, and that his alleged confession to the police had been obtained unlawfully. He also complained that from 1 to 4 June 2004 he had been kept at the police department, all the time sitting on a chair without sleep and food and that when he had arrived at Zagreb Prison he had had injuries on his body. 54. The applicant ’ s constitutional complaint was dismissed by the Constitutional Court ( Ustavni sud Republike Hrvatske ) on 11 March 2009. The court found that the applicant had benefited from all the guarantees of a fair trial throughout the criminal proceedings against him and that there was no evidence to support the allegation that the lengthy questioning by the police had reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself. The relevant part of the decision reads as follows : “The applicant complains of a lack of legal assistance during his questioning by the police between 2 and 4 June 2004 (the constitutional complaint wrongly gives the date as 1 June 2004 since the documents in the case file show that the applicant was arrested on 2 July 200 6 at 7 a.m.). The second-instance judgment established that the choice of lawyer P.B. was not imposed on the applicant. Immediately after his arrest, and at the applicant ’ s request, the police officers attempted to inform lawyer E.Z., but the latter was absent, travelling abroad. After that the applicant engaged lawyer V.M., who did not arrive either. The police then asked the applicant to choose a lawyer from the list of lawyers on duty for each county, compiled and submitted by the Croatian Bar Association, and he signed a power of attorney in respect of lawyer P.B. Thus ... the applicant was not denied the right to a lawyer of his own choosing. Whether the lawyer thus chosen truly offered a satisfactory professional service to the applicant in accordance with the Croatian Bar Association Statute is a question of the lawyer ’ s professional ethics and not a matter to be assessed in the appeal proceedings, as correctly stressed by the Supreme Court. ... As regards the applicant ’ s allegations that he was ill-treated (mentally and physically by being deprived of food and drinks and otherwise) by the police officers at the time the statement of his confession was drawn up ... the second-instance court found that these allegations had no basis in the statements of the police officers or the statement of lawyer P.B., who had been present at the time. The mental and physical condition of the applicant at the time he was questioned by the police was assessed by the psychiatric expert, who concluded that nothing in the written record [of the applicant ’ s questioning by the police] and the manner of his expression, as recorded, indicated that the applicant was suffering from a mental disorder or altered state of consciousness. Furthermore, that court established that the in-depth six-page statement by the applicant contained numerous details, names, dates and locations which could be known only to a person who was speaking from his own experience. This detailed statement is corroborated by other facts established during the proceedings. Furthermore, it was established that there was no medical report showing that the applicant suffered from any health problems at the time the criminal offence was committed ( tempore criminis ). The day the applicant committed the criminal offence he had chopped down an oak tree, which is a demanding physical job. The applicant is quite a heavy person (at the time the criminal offence was committed he weighed about a hundred kilos) and thus obviously physically strong. The psychiatric expert ... also gave her written and oral opinion about the physical and mental state of the applicant during his questioning by the police, and the Supreme Court found that there was no need for a further psychiatric examination and that the questioning of the applicant before the police had not been unlawful. In view of all the above facts concerning the applicant ’ s questioning by the police, the Constitutional Court finds that there is no evidence showing that the lengthy questioning by the police reduced the applicant to a state of physical and mental exhaustion capable of leading him to falsely incriminate himself. Although the applicant spent the period between 2 June 2004 at 7 a.m. and 4 June 2004 with the police while the written record was drawn up, the analysis of all the documents in the case file concerning the pre-investigation stage does not disclose any ill-treatment which could lead to [ a finding of] a violation of his constitutional rights. ... ” 3. Decisions adopted during the trial concerning the applicant ’ s detention 55. On 3 June 2004 the investigating judge of the Zagreb County Court ordered the applicant to be held in police custody for a further twenty-four hours, until 7 a.m. on 4 June 2004, under Article 98 § 1 of the Code of Criminal Procedure. The decision expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. This decision was served on the applicant. He did not appeal against it. 56. On 4 June 2004 the investigating judge, relying on Article 98 § 2 of the Code of Criminal Procedure, ordered the applicant ’ s detention for a further forty-eight hours until 1 p.m. on 6 June 2004. The decision also expressly stated that the applicant had been arrested on 2 June 2004 at 7 a.m. It was served on the applicant and his chosen counsel, V.M. No appeal was lodged. 57. In a letter of 5 June 2004 the investigating judge ordered Zagreb County Prison to continue to detain the applicant until midnight on 7 June 2004. 58. On 7 June 2004 the investigation judge ordered his further detention under Article 102 § 1(4) of the Code of Criminal Procedure. This decision was served on the applicant and his counsel V.M. They did not lodge an appeal. 59. On 30 July 2004 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. This decision was served on the applicant and the lawyer V.M. They did not lodge an appeal. 60. On 8 November 2004 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. This decision was served on the applicant and the lawyer M.K. They did not lodge an appeal. 61. On 12 January 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. This decision was served on the applicant. He did not lodge an appeal. 62. On 17 March 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel, although properly summoned, was present. This decision was served on the applicant. He did not lodge an appeal. 63. On 19 May 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present. There is no indication in the case file that this decision was served on either of them. 64. On 20 July 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present, although the latter was properly summoned. This decision was served on the applicant and he lodged an appeal, arguing that there was no evidence against him and that the three-judge panel had extended his detention always using the same wording, without examining whether the circumstances had changed. 65. On 4 August 2005 the Supreme Court dismissed the applicant ’ s appeal. 66. On 27 September 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present, although the latter was properly summoned. This decision was served on the applicant. No appeal was lodged. 67. On 8 December 2005 a three-judge panel of the Velika Gorica County Court extended the applicant ’ s detention, again under Article 102 § 1(4) of the Code of Criminal Procedure. Neither the applicant nor his counsel was present, although the latter was properly summoned. This decision was served on the applicant. No appeal was lodged. | Serving a prison sentence for murder, the applicant complained in particular of having been beaten by the police during his questioning at the Zagreb Police Department, of having been forced to sit on a chair and having been deprived of sleep and food during the three days that he was questioned. He also complained that the criminal proceedings against him had been unfair, in particular as he had lacked legal assistance during the police questioning. |
943 | Freedom of expression | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1967 and lives in Istanbul. 7. On 12 February 1993 the applicant started working as a judge in Tufanbeyli district in Adana. A. The disciplinary proceedings 8. On 14 August 1995 the General Command of the Gendarmerie submitted a formal complaint to the judicial inspection board attached to the Ministry of Justice concerning the applicant's behaviour. A disciplinary investigation into the allegations was conducted by a judicial inspector. 9. On 1 March 1996 the judicial inspection board notified the applicant in writing that a disciplinary investigation had been carried out under Section 82 of Law no. 2802 into a number of acts which he had allegedly committed and which were considered incompatible with his status as a judge. The letter set out the charges against the applicant and he was requested to submit his defence in writing. 10. The charges, five in all, included the accusation that the applicant had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge (the first charge). The other four charges related, inter alia, to reported incidents of his conflictual behaviour towards his colleagues and to his failure to respect the dress code of the profession and working hours. 11. The judicial inspector drafted a report dated 27 March 1996, according to which there was no evidence to justify opening an investigation into the first set of charges. However, he stated that evidence had been obtained that the applicant had behaved in a conflictual way with his colleagues and that he shaved only once a week, came late to work and did not wear a tie. This report was submitted to the judicial inspection board of the Ministry of Justice. The Government submitted that the judicial inspector heard evidence from the Governor, the public prosecutor, the applicant and his colleagues. 12. On 29 April 1996 the Minister of Justice approved the transfer of the whole case file to the Supreme Council of Judges and Public Prosecutors (“the Supreme Council”) with a view to the consideration of possible disciplinary measures under Section 87 of Law no. 2802. 13. With regard to the first set of charges concerning the accusation that the applicant had undermined the honour and dignity of the judiciary as well as respect for his own position as a judge, the applicant was accused of introducing himself at various social events as being “of Kurdish origin” and of behaving in a manner which displayed his sympathy for the PKK [1]. It was stated that the applicant had said: “If they throw me out of the judiciary, I will go to Germany to join the organisation.” It was further alleged that the applicant talked to Kurdish-speaking citizens in Kurdish in order to gain their sympathy. He was also accused of regularly reading a legal publication of the PKK, Özgür Ülke, until it was banned and of watching Med TV a PKK-controlled television channel, via a satellite, antenna at his home. 14. In respect of the remaining sets of charges, the applicant was accused of quarrelling on various occasions with the public prosecutor, of shaving only once a week, of not wearing a tie at work and of coming to work late. 15. In his written submissions to the Supreme Council, the applicant denied the accusations against him, maintaining that they were false, inaccurate and incomplete or had been misinterpreted. He assumed that the evidence against him consisted of statements given by his colleagues and other civil servants. He alleged that certain persons were hostile to him since he had previously lodged formal complaints against them. In this connection, he submitted that, in the past, he had made formal complaints against the public prosecutor, Mr H.A. and the elected major, Mr H.K. The applicant therefore maintained that the public prosecutor, as a result of certain personal and professional disagreements which they had had, spread false accusations against him and had convinced other local government officials to make further similar accusations. The applicant gave some examples of situations where he had been in conflict with the public prosecutor. He affirmed that he believed in all the fundamental principles of the Turkish Republic and served the State faithfully. 16. He admitted, inter alia, that, on certain occasions and during private conversations, he had stated that he was a Kurd, had criticised certain unlawful acts of the State authorities and had maintained that a distinction should be made between the innocent population of Kurdish origin and the PKK. The applicant submitted that he condemned terrorist acts and that it was an insult to suggest that he sympathised with the PKK. He asserted that while none of his family members and close friends had ever been interrogated for terrorist offences, the public prosecutor's brothers were in custody on allegations of aiding and abetting the PKK and his nephew had been remanded in custody for alleged PKK membership. 17. The applicant further admitted reading Özgür Ülke which, in his opinion reported, on the events in south-east Turkey, albeit in a biased manner. He argued that the incidents reported in the region were a problem which the country was facing and he, like everyone else, had the right to be informed about them. He pointed out that he also read various other lawful publications for the same purpose. Moreover, he argued that the fact that he read certain lawful partisan publications did not convey his approval of the views expressed therein. As to the allegation that he regularly watched MedTV at home, the applicant explained that he had never been able to watch the channel due to technical difficulties with the reception. He argued that, even if he had watched the channel in question, this was not unlawful. The applicant further refuted the remainder of the accusations brought against him. 18. On 11 July 1996 the Supreme Council, after assessing the evidence in the file as well as the written defence previously submitted by the applicant, found by a majority that the evidence in the file was sufficient to conclude that the allegations against the applicant were well ‑ founded. In respect of the first set of accusations, the Supreme Council concluded that the applicant should be transferred to another jurisdiction as a sanction pursuant to Section 68 (a) and (b) of Law no. 2802. In respect of the remaining accusations, the applicant received a reprimand. The contents and the sources of the evidence in the file which were relied on were not restated in the decision. 19. On 4 November 1996 the applicant requested the Supreme Council to rectify its decision. In his petition, he reiterated his previous submissions and requested that evidence be heard from his colleagues. The applicant maintained, inter alia, that the accusations against him were the result of lies propagated by the public prosecutor and his friends. He affirmed that he had always maintained his impartiality. He also submitted that as a young judge he might have made certain mistakes due to his inexperience, but that he should not be punished in such a harsh manner for his mistakes. 20. On 14 November 1996 the Supreme Council unanimously rejected the applicant's request for a rectification of its decision. 21. On 17 April 1997 the Supreme Council's appeals board dismissed the applicant's objections. 22. The applicant was transferred to Şenpazar district in Kastamonu. B. Subsequent events 23. Following an enquiry by the applicant, the Supreme Council decided on 2 October 1997 that the applicant could not be promoted for a period of two years on account of the disciplinary sanction of transfer to another jurisdiction imposed on him pursuant to Section 30 § 4 of the Law no. 2802. 24. The applicant was subsequently appointed to Çamoluk district in Giresun. His requests of 9 January 1998 and 29 December 1998 to be appointed to a region carrying a higher rank were rejected by the Supreme Council in decisions of 12 February 1998 and 14 April 1999 respectively. 25. On 9 December 1999 the Supreme Council dismissed the applicant's request for a retroactive promotion. It noted that the disciplinary sanction against the applicant had been erased pursuant to Law no. 4455 and that it would not be an obstacle to future promotions. However, it considered that this situation did not render null and void the Supreme Council's decision not to promote the applicant for two years. 26. Following a fresh set of disciplinary proceedings, the applicant unwillingly resigned from his post in 2001. The applicant now practises as a lawyer. | This case concerned disciplinary proceedings against the applicant, who was working as a judge, for, among other things, reading PKK (the Kurdistan Workers’ Party, an illegal armed organisation) legal publications and watching a PKK-controlled television channel. He denied all accusations, arguing that he believed in the fundamental principles of the State and served it faithfully. The applicant complained in particular that the disciplinary sanction imposed on him had infringed his right to freedom of expression. |
953 | Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants were born in 1967 and 1958 respectively and live in Strasbourg. They are officials of the Council of Europe. 11. By Presidential Decree no. 154/2007 of 18 August 2007, the Greek Parliament was dissolved and a general election was called for 16 September 2007. 12. In a faxed letter of 10 September 2007 to the Greek ambassador in France, the applicants, who are permanently resident in France, expressed the wish to exercise their voting rights in France in the elections to be held on 16 September 2007. 13. On 12 September 2007 the ambassador, relying on the instructions and information provided by the Ministry of the Interior, replied as follows. “[The Greek State] confirms its wish – frequently expressed at the institutional level – to enable Greek citizens resident abroad to vote from their place of residence. However, it is clear that this necessitates statutory rules which do not currently exist. In fact, such rules cannot be introduced by a simple administrative decision, as special measures are required for the setting-up of polling stations in embassies and consulates ... In the light of the above and despite the wish expressed by the State, your request concerning the forthcoming elections cannot be granted for objective reasons.” 14. The general election took place on 16 September 2007. The applicants, who did not travel to Greece, did not exercise their right to vote. i. the Council of Europe member and observer States concerned to: ... b. grant electoral rights to all their citizens (nationals), without imposing residency requirements; c. facilitate the exercise of expatriates’ electoral rights by providing for absentee voting procedures (postal and/or consular voting) and considering the introduction of e-voting consistent with Recommendation Rec(2004)11 of the Committee of Ministers and to cooperate with one another to this end; ...” (b) Recommendation 1714 (2005) of the Parliamentary Assembly of the Council of Europe – Abolition of restrictions on the right to vote “1. Referring to its Resolution 1459 (2005) on the abolition of restrictions on the right to vote, the Parliamentary Assembly calls upon the Committee of Ministers to: i. appeal to member and observer States to: a. sign and ratify the 1992 Council of Europe Convention on the Participation of Foreigners in Public Life at Local Level (ETS No. 144) and to grant active and passive electoral rights in local elections to all legal residents; and b. reconsider existing restrictions on electoral rights of prisoners and members of the military, with a view to abolishing all those that are no longer necessary and proportionate in pursuit of a legitimate aim; iii. review existing instruments with a view to assessing the possible need for a Council of Europe convention to improve international cooperation with a view to facilitating the exercise of electoral rights of expatriates.” 2. Texts adopted by the European Commission for Democracy through Law (the Venice Commission) (a) Code of Good Practice in Electoral Matters (Opinion no. 190/2002) 22. The Code states that “the right to vote and to be elected may be accorded to citizens residing abroad” (point I.1.1.c.v.). The explanatory report makes the following indication in this regard: “... the right to vote and/or the right to stand for election may be subject to residence requirements, residence in this case meaning habitual residence. ... Conversely, quite a few States grant their nationals living abroad the right to vote, and even to be elected. This practice can lead to abuse in some special cases, e.g. where nationality is granted on an ethnic basis.” 23. The other relevant parts of the Code provide: “... 3.2 Freedom of voters to express their wishes and action to combat electoral fraud i. voting procedures must be simple; ii. voters should always have the possibility of voting in a polling station. Other means of voting are acceptable under the following conditions: iii. postal voting should be allowed only where the postal service is safe and reliable; the right to vote using postal votes may be confined to people who are in hospital or imprisoned or to persons with reduced mobility or to electors residing abroad; fraud and intimidation must not be possible; iv. electronic voting should be used only if it is safe and reliable; in particular, voters should be able to obtain a confirmation of their votes and to correct them, if necessary, respecting secret suffrage; the system must be transparent; v. very strict rules must apply to voting by proxy; the number of proxies a single voter may hold must be limited; ...” (b) 2006 report on electoral law and electoral administration in Europe (Study no. 352/2005) 24. The report notes, among other things, the following: “ Voting rights for citizens abroad 57. External voting rights, e.g. granting nationals living abroad the right to vote, are a relatively new phenomenon. Even in long-established democracies, citizens living in foreign countries were not given voting rights until the 1980s (e.g. Federal Republic of Germany, United Kingdom) or the 1990s (e.g., Canada, Japan). In the meantime, however, many emerging or new democracies in Europe have introduced legal provisions for external voting (out-of-country voting, overseas voting). Although it is yet not common in Europe, the introduction of external voting rights might be considered, if not yet present. However, safeguards must be implemented to ensure the integrity of the vote ... ... 152. Postal voting is permitted in several established democracies in western Europe, e.g. Germany, Ireland, Spain, Switzerland ... It was also used, for example, in Bosnia and Herzegovina and the Kosovo in order to ensure maximum inclusiveness of the election process (CG/BUR (11) 74). However, it should be allowed only if the postal service is secure and reliable. Each individual case must be assessed as to whether fraud and manipulation are likely to occur with postal voting. ...” (c) 2011 report on out-of-country voting (Study no. 580/2010) 25. The conclusions of this report read as follows. “91. National practices regarding the right to vote of citizens living abroad and its exercise are far from uniform in Europe. 92. However, developments in legislation, such as the judgment delivered recently by the European Court of Human Rights in a case concerning Greece, which is not yet final, point to a favourable trend in out-of-country voting, in national elections at least, as regards citizens who have maintained ties with their country of origin. 93. That is true at least of persons who are temporarily out of the country. But definitions of the temporary nature of a stay abroad vary greatly and if this criterion is adopted, it should be clarified. 94. Distinctions should also be drawn according to the type of elections. National, single-constituency elections are easier to open up to citizens resident abroad, while local elections are generally closed to them, particularly on account of their tenuous link with local politics. 95. The proportions of citizens living out of the country may also vary greatly from one country to another. When there are a large number of them, they may have a decisive impact on the outcome of the election, which may justify the implementation of specific measures. 96. It is perfectly legitimate to require voters living abroad to register to be able to vote, even if registration is automatic for residents. 97. The obligation to vote in an embassy or consulate may in practice severely restrict the right to vote of citizens living abroad. This restriction may be justified on the grounds that the other means of voting (postal vote, proxy voting, e-voting) are not always reliable. 98. To sum up, while the denial of the right to vote to citizens living abroad or the placing of limits on that right constitutes a restriction of the principle of universal suffrage, the Commission does not consider at this stage that the principles of the European electoral heritage require the introduction of such a right. 99. Although the introduction of the right to vote for citizens who live abroad is not required by the principles of the European electoral heritage, the European Commission for Democracy through Law suggests that States, in view of citizens’ European mobility, and in accordance with the particular situation of certain States, adopt a positive approach to the right to vote of citizens living abroad, since this right fosters the development of national and European citizenship.” 3. International Covenant on Civil and Political Rights 26. The right to vote is enshrined in Article 25 of the Covenant, the relevant parts of which read as follows: “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions: ... (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; ...” During the drafting of the General Comment on Article 25 of the Covenant, which was published on 12 July 1996 by the Human Rights Committee, a proposal was made calling on States to enable their nationals residing overseas to make use of absentee postal-voting systems where such systems were available. However, as the Human Rights Committee could not agree on the proposal, it was not included in the General Comment. 4. American Convention on Human Rights 27. Article 23 of the said Convention provides as follows: “1. Every citizen shall enjoy the following rights and opportunities: a. to take part in the conduct of public affairs, directly or through freely chosen representatives; b. to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and c. to have access, under general conditions of equality, to the public service of his country. 2. The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.” 28. The right to vote under Article 23 is not absolute and may be subject to restrictions on the grounds expressly laid down in the second paragraph, which include “residence”. However, not every restriction of the right to vote based on residence is justified. 29. In the case of Statehood Solidarity Committee v. United States (Case 11.204, Report no. 98/03 of 29 December 2003), the Inter-American Commission on Human Rights held that the approach to the interpretation and application of the right guaranteed under Article 23 of the American Convention was consistent with the case-law of the other international systems of human rights protection whose treaties provided similar guarantees. It referred in that regard to the case-law of the European Court of Human Rights and the United Nations Human Rights Committee: “93. ... Like the European Court and this Commission, the UN Human Rights Committee has recognized that the rights protected under Article 25 of the ICCPR [International Covenant on Civil and Political Rights] are not absolute, but that any conditions that apply to the right to political participation protected by Article 25 should be based on ‘objective and reasonable criteria’. The Committee has also found that in light of the fundamental principle of proportionality, greater restrictions on political rights require a specific justification. ...” 5. Human rights protection system based on the African Charter on Human and Peoples’ Rights 30. Article 13 § 1 of this Charter is worded as follows: “Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.” 31. Taking the view that this provision was similar in substance to Article 25 of the International Covenant, the African Commission on Human and Peoples’ Rights interpreted Article 13 of the Charter in the light of the Human Rights Committee’s General Comment on Article 25. It therefore held that any conditions applicable to the exercise of Article 25 rights should be based on objective and reasonable criteria established by law (see Purohit and Moore v. The Gambia, Communication no. 241/2001, § 76). C. Comparative law 32. According to the comparative-law materials available to the Court on the legislation of member States of the Council of Europe concerning the right to vote from abroad, the majority of the countries concerned authorise and have implemented procedures to allow their nationals resident abroad to vote in parliamentary elections. However, the situation varies greatly and the different scenarios do not lend themselves to classification into neat categories. A distinction can nevertheless be made between two broad categories: those member States which permit their citizens to vote from abroad, on the basis of a variety of arrangements; and those which, as a general rule, do not. Lastly, most of the member States which allow voting from abroad lay down administrative procedures for the registration of expatriates on the electoral roll. 1. Arrangements for voting from abroad in the countries which authorise it in principle 33. Thirty-seven member States fall into this category: Austria, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, the Republic of Moldova, Monaco, the Netherlands, Norway, Poland, Portugal, Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia”, Turkey, Ukraine and the United Kingdom. 34. The above-mentioned countries provide either for voting in polling stations abroad or postal voting, or both. The following seventeen countries allow voting in embassies or consulates or in polling stations set up elsewhere: Bulgaria, Croatia, the Czech Republic, Denmark, Finland, France, Georgia, Hungary, Iceland, the Republic of Moldova, Norway, Poland, Romania, Russia, Serbia, “the former Yugoslav Republic of Macedonia” and Ukraine. Eight countries (Austria, Germany, Italy, Liechtenstein, Luxembourg, the Netherlands, Portugal and Slovakia) allow their citizens living abroad to vote by post only, either through an embassy or consulate or by writing directly to the competent national authority. The possibility of voting either at an embassy (or consulate) or by post is provided for in Belgium, Bosnia and Herzegovina, Estonia, Latvia, Lithuania, Slovenia, Spain and Sweden. A handful of countries – Belgium, France, the Netherlands, Switzerland and the United Kingdom – also allow voting by proxy. In Monaco, proxy voting is the sole means by which nationals of that country can vote from abroad. A few States (the Netherlands and Switzerland) allow Internet voting. This type of voting is already enshrined in law and in operation in Estonia, while it is under consideration in Spain. 35. In five member States (Bosnia and Herzegovina, Denmark, Hungary, Liechtenstein and “the former Yugoslav Republic of Macedonia”), only persons temporarily resident outside the country have the right to vote from abroad. In the last-mentioned country, the law refers explicitly to persons living and working abroad temporarily. In some countries, expatriates lose the right to vote after a certain period of time (fifteen years in the United Kingdom and twenty-five years in Germany). 36. Certain countries such as Austria, Hungary, Slovenia and Ukraine allow external voting only with the permission of the host country. 37. In four countries – Croatia, France, Italy and Portugal – expatriates may elect their own representatives to the national parliament in constituencies set up outside the country. In Portugal, each of the two constituencies elects a member of parliament. French citizens living abroad participate in the election of twelve members of the Senate via the 150 ‑ strong Assembly of French Expatriates. From 2012, they will also be able to elect eleven members to the National Assembly. In Croatia and Italy, the number of parliamentary seats allocated to expatriate constituencies depends on the number of votes cast. 2. Countries which do not grant the right to vote from abroad or impose significant restrictions on it 38. Eight member States – Albania, Andorra, Armenia, Azerbaijan, Cyprus, Malta, Montenegro and San Marino – do not allow voting from abroad in parliamentary elections. In particular, in Albania, the electoral code in force contains no provisions concerning voting from abroad. In Ireland, strict rules are laid down, with postal voting for expatriates being confined to members of the police and armed forces and to Irish diplomats and their spouses. The right is therefore limited to a specific, very small group of individuals. Under the legislation in Montenegro and San Marino, persons resident abroad may vote only in their own country. 3. Administrative procedures for registration of expatriates on the electoral roll 39. In at least twenty-two of the member States which allow voting from abroad, persons wishing to avail themselves of this facility must apply by a certain deadline to be registered on the electoral roll, either to the authorities in their country of origin or to the diplomatic or consular mission abroad. 40. In Bosnia and Herzegovina an application for registration must be made before each election to the country’s central electoral commission. In Denmark, persons eligible to vote have to submit an application to the last municipality in which they lived. In Hungary, voters may request registration at the diplomatic or consular mission, by filling out an application to the local electoral bureau within the specified time-limit. In Germany and Luxembourg, the request must be made to the local authorities. In Slovakia, voters living abroad must request registration on a special electoral roll held by the municipal authorities of Bratislava ‑ Petržalka. In Slovenia, persons voting abroad must notify the national electoral commission, while in Serbia they must request registration on the electoral roll as foreign residents. Spanish voters must apply to the provincial branch of the electoral bureau for registration on the special list of absentee voters. In the United Kingdom, overseas voters must re-register each year with their local electoral registration office. 41. In some countries, the request must be sent to the diplomatic mission or consulate, which either draws up the list of voters itself or forwards requests to the competent authority in the country of origin. Belgian citizens included on the population register held by the diplomatic mission or consulate must complete a form indicating the municipality in which they wish to be registered and the voting method they will use. The form is then sent to the municipality concerned and the person’s name is added to the list of expatriate voters. 42. In Bulgaria, the Czech Republic, Poland and Russia, the list of expatriate voters is drawn up by the diplomatic or consular mission on the basis of requests from voters. Croatian citizens wishing to vote abroad must register with the Croatian embassy or consulate. Latvian voters who wish to vote by post have to apply to the diplomatic mission or consulate concerned, where they are registered on a special list. In the Netherlands, expatriates eligible and wishing to vote must request registration on the electoral roll of Dutch nationals living abroad by applying to the head of the consular mission, who forwards the request to The Hague. In Portugal, voting abroad entails prior registration on a consular list of voters. Swiss citizens living abroad must apply to the diplomatic or consular mission with which they are registered. The application is forwarded to the municipality in which the person concerned habitually voted, and he or she is registered on the electoral roll there. In “the former Yugoslav Republic of Macedonia”, expatriate voters are registered on the country’s electoral roll after applying to the diplomatic mission or consulate. In Turkey, expatriate voters must register on a special electoral roll by submitting a declaration of residence to the nearest consulate. 43. In other countries, expatriate voters do not have to complete any formalities in order to register, as the authorities register them automatically on the basis of the existing lists of voters. This is the case in Estonia, Finland, France, Georgia, Iceland, Italy, Lithuania, the Republic of Moldova, Norway, Romania, Sweden and Ukraine. Voters who are not on the electoral roll may register on request (for instance in France, Georgia, Italy and Ukraine). 44. In Iceland, voters must re-register on the national electoral roll after eight years’ residence abroad; in Norway and Sweden, the time-limit is ten years. 45. In some countries which have automatic registration, expatriates must complete certain formalities in order to vote in their country of origin. For instance, Italian voters resident abroad who wish to vote in Italy must inform the relevant consular authority in writing. French expatriates must request registration on the electoral roll in France if they wish to vote there. | The applicants complained that, in the absence of regulation on that point, they could not exercise their voting right in the country where they lived as expatriates (France) even though the Constitution of their country of origin (Greece) provided for that possibility. |
596 | Case-law of the European Court of Human Rights | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1988 and lives in Ikaria. 7. On 3 0 July 2007 the applicant, wishing to pursue a course of higher education, applied for and was granted permission to defer his enlistment for military service. On 2 4 September 2012 he interrupted the deferral. As a result, he was required to report to the recruitment centre on 2 3 January 2013. 8. On 2 2 January 2013 he applied for leave to perform alternative service on the grounds that he was a conscientious objector. 9. On 2 7 May 2013 he appeared before the armed forces ’ special committee ( established by section 62 of Law no. 3421/2005) to explain the nature of his conscientious objection. He stated that his objection was based on moral values stemming from the religious education he had received from his mother, a Jehovah ’ s Witness, and on his own approach to life, involving the rejection of anything linked to war, violence or destruction in all its forms. The following is an extract from his interview : “ Question : Tell us about your beliefs. Answer : I grew up in a home where we were respectful of God. My mother is a Jehovah ’ s Witness. My father is an atheist. I believe that since God does not allow me to perform armed service in this world, I would be insulting him if I were to do so. Question : So you are citing religious reasons to justify your refusal to perform armed service. Answer : In substance, yes, but as I have not yet been baptised, I cannot provide you with a certificate from the Church of the Jehovah ’ s Witnesses. That is why I am also relying on moral grounds. Question : Why have you not yet been baptised? Answer : I still have some way to go. My behaviour is not yet completely suitable. I have decided to get baptised, but to do so I still need to make further progress and study the Scriptures and the Word of God in more detail. Question : How have you come to the conclusion that God has nothing to do with war? Answer : I have not drawn that conclusion, but if I do enlist and serve worldly power, I will find myself on the wrong side when God decides to take action. Question : Do you think it is feasible to eradicate violence from this world? Answer : It is hard to eradicate violence and armies by good will alone. Question : Have you ever witnessed a violent incident, and if so, how did you react? Answer : Yes, I was assaulted. I tried to keep my response to a minimum by immobilising the attacker. Question : By reacting in that way, were you not using violence? Answer : No, it was self-defence, and I do not think that self-defence involves the use of pure violence. Question : So you acknowledge that there is a lawful authority and that some entities may potentially use force where necessary? Answer : Yes, I acknowledge lawful authority. The law of mankind exists until the divine law arrives. I believe that people should submit to lawful authority. But there is a difference between submitting to it and becoming part of it. Question : Are you a member of a non-violent organisation? Answer : No; for me, religious reasons take priority over reasons linked to morals ...” 10. Only three of the five members of the special committee were present when it interviewed the applicant, namely two officers of the armed forces and an adviser of the State Legal Council. The other two members – two university professors specialising in psychology, philosophy or social sciences – were unable to attend and were not replaced. 11. On 2 7 May 2013 the special committee decided unanimously to propose that the applicant ’ s application be rejected. It found that the religious and ethical arguments he had put forward for being exempted from armed service were unsubstantiated. Firstly, he was not a member of the Jehovah ’ s Witnesses community, and secondly, he had not shown that he had taken part in non-violent movements; on the contrary, he had stated that self-defence was not a form of violence and that people should submit to lawful authority. 12. On 3 0 July 2013 the Minister of National Defence rejected the application on the grounds proposed by the special committee. 13. On 5 September 2013 the applicant applied to the Supreme Administrative Court for judicial review of the decision by the Minister of National Defence. 14. Firstly, he challenged the composition of the special committee that had adjudicated on his case, and complained in particular that the two university professors had been absent on that occasion. He submitted that as a result of their absence and the failure to replace them, the very nature of the committee had been distorted, since the military officers had formed a majority among the three members present. In the applicant ’ s view, the officers were inherently ill-disposed towards conscientious objectors and did not have the expertise in philosophy and psychology to make an objective assessment of the grounds put forward by them. 15. Secondly, the applicant argued that the Minister ’ s decision had not contained sufficient reasons, seeing that ( a) it had incorrectly mentioned that he had cited religious grounds without being an adherent of a religion; and ( b) the members of the committee had displayed prejudice by asserting that conscientious objectors had to be activists and anti-authority or to publicise their views, whereas the law did not lay down any such conditions. 16. Thirdly, the applicant complained of an infringement of his right to conscientious objection, arguing that the mere assertion of that right, coupled with his behaviour in practice (not possessing a firearms licence or having any convictions for offences involving violence), was sufficient to justify his application for exemption from armed service. 17. In judgment no. 1289/2014 of 7 April 2014 the Supreme Administrative Court dismissed the applicant ’ s application. 18. In response to his first argument, it noted that the members of the committee sat on an equal basis and that the absence of two of the members therefore had no effect on the quorum and did not distort the nature of the committee. 19. With regard to his second argument, the Supreme Administrative Court explained that, after examining whether the applicant was a follower of a religion that prohibited the use of force, whether he had taken part in non-violent movements and whether his philosophy of life prevented him from handling weapons, the committee had concluded that his conscientious objection was not accompanied by corresponding behaviour. It also dismissed his argument that opponents to the use of violence who did not publicly identify themselves as such were victims of discrimination, holding that the law required clear proof of their beliefs and that, moreover, the fact of not falling within the exceptions provided for by law was insufficient. 20. As to the third argument, the Supreme Administrative Court held that neither international instruments nor domestic legislation established a right to be exempted from armed service simply by citing conscientious objection. Such an exemption had to be subject to the conditions laid down by law, including the submission of sound and convincing reasons to justify it. It added that conscientious objection could not be established on the basis of a simple declaration, and nor could it be inferred from negative facts, such as not having any convictions for assault and not possessing weapons. On the contrary, it was necessary to provide evidence of active behaviour over a certain period, but the applicant had failed to do so. 21. On 1 9 May 2014 the applicant was ordered to pay a fine of 6, 000 euros (EUR) for insubordination; with interest for late payment, the amount was increased to EUR 7, 940. 85. On 11 July 2014 the applicant applied to the Mytilene Administrative Court to have the fine set aside. The case is still pending, but the authorities have seized a sum from his bank account. ... | This case concerned the authorities’ refusal to grant the applicant the status of conscientious objector and to allow him to do alternative civilian work instead of military service. |
1,067 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant, a Swiss national born in 1914, is a retired ski instructor and mountain guide living in X, Switzerland. A. Administrative proceedings instituted against the applicant 9. In 1987 the Federal Tax Administration ( Eidgenössische Steuerverwaltung ) consulted the case file of the financial manager, P. It was noted that between 1979 and 1985 the applicant had made investments with P. and his companies. However, these amounts had not been declared in the taxation periods between 1981/82 and 1987/88. 10. In view of this, on 11 December 1987 the X District Tax Commission ( Bezirkssteuerkommission ) instituted tax-evasion proceedings ( Steuerhinterziehungsverfahren ) in respect of the applicant’s federal taxes. He was requested to submit all the documents which he had concerning these companies. 11. On 22 December 1987 the applicant admitted that he had “in fact made investments with P. and his companies from 1979 to 1985 and that he had not properly declared the income in his personal tax return”. However, the applicant did not submit the requested documents. 12. On 24 June 1988 the applicant was again asked to declare the source of the income, amounting to 238,000 Swiss francs (CHF), which he had invested with P. The applicant did not reply. 13. On 2 September 1988 the District Tax Commission decided to issue an assessment to supplementary tax ( Nachsteuer ) on the interest derived from the income which the applicant had invested with P. in the years 1979 to 1985. In letters dated 29 September and 11 October 1988, the applicant was informed of the assessment of his taxes ( Steuerveranlagung ) and of the supplementary tax due. 14. Following an intervention of the Federal Tax Inspector, the President of the District Tax Commission withdrew the supplementary tax decision in two letters dated 7 and 20 October 1988. At the same time the President again requested the applicant to explain the source of the invested income. A further such request was served on the applicant on 19 January 1989. 15. The applicant not having reacted to any of these requests, the Cantonal Administration for Direct Federal Taxes ( kantonale Verwaltung für die direkte Bundessteuer ) imposed on the applicant on 28 February 1989 a disciplinary fine ( Ordnungsbusse ) of CHF 1,000. It relied on Article 131 § 1 of the decree of the Federal Council on the imposition of a direct federal tax ( Bundesratsbeschluss über die Erhebung einer direkten Bundessteuer ). The applicant duly paid the fine. 16. On 7 April 1989 and on 19 June, 17 July and 16 August 1990 the District Tax Commission again admonished the applicant as he still had not submitted the required information. 17. On 3 August and 5 September 1990 the applicant replied that, in his view, the decision to impose supplementary taxes on him had acquired legal force ( Rechtskraft ) on 29 September and 11 October 1988, so that he was not obliged to provide further information. 18. Thereupon, on 29 November 1990 the Cantonal Administration for Direct Federal Taxes imposed a second disciplinary fine, of CHF 2,000, on the applicant in respect of federal taxes, based on Article 131 § 1 of the decree of the Federal Council. 19. On 4 December 1990 and 22 January 1991 the Cantonal Tax Administration imposed a third disciplinary fine, of CHF 2,000, in respect of cantonal taxes. 20. The applicant’s appeal against the second disciplinary fine, imposed on 29 November 1990, was dismissed by the Tax Appeals Commission ( Steuerrekurskommission ) of the Canton of Valais on 18 December 1992. 21. In its decision, the Tax Appeals Commission found that the applicant had intentionally not complied with the order of the tax authorities to provide information. However, according to Article 131 § 1 of the decree of the Federal Council, persons liable to pay taxes were obliged to cooperate with the tax authorities, in particular to submit accounts, documents and other receipts in their possession which could be of relevance when determining the taxes. Moreover, the decision to impose supplementary taxes on the applicant had not acquired legal force as it had been withdrawn on 7 and 20 October 1988 by the President of the District Tax Commission. B. Proceedings before the Federal Court 22. The applicant filed an administrative-law appeal with the Federal Court in which he complained, inter alia, under Article 6 of the Convention that as an accused he should not be obliged to incriminate himself. 23. Meanwhile, the applicant also filed an objection against the third disciplinary fine, imposed on 4 December 1990 and 22 January 1991, although the proceedings before the competent district court ( Bezirksgericht ) were suspended pending the outcome of the proceedings before the Federal Court. 24. On 7 July 1995 the Federal Court dismissed the applicant’s administrative-law appeal, the decision being served on the applicant on 12 December 1995. 25. In its decision, the Federal Court considered it undisputed that the applicant had made investments with P. and his companies which he, the applicant, had not declared. The tax authorities had not been in a position to assume that the means invested stemmed from income and assets which had already been taxed. They had therefore quite correctly asked the applicant to demonstrate the source of these moneys. 26. The Federal Court then recapitulated the relevant case-law. Tax-evasion proceedings constituted true criminal proceedings in respect of which the procedural guarantees, including those of Article 6 of the Convention, applied. Thus, the offence of tax evasion led to a fine which had to be paid in addition to the taxes evaded. The fine constituted a sanction which had both preventive and repressive functions; its amount was up to four times the amount of the taxes evaded and it had the same effect for the person concerned as a criminal conviction. 27. On the other hand, in the Federal Court’s opinion the obligation to pay a supplementary tax did not amount to a criminal sanction. The supplementary tax was not separate in nature from the original tax debt; rather, it was an additional tax resulting from an examination of the tax assessment of the person concerned and serving to bring in outstanding taxes. As such, it had no punitive function. The judgment continued: “even though the supplementary tax is not a criminal sanction within the meaning of Article 129 of the federal decree, the tax will be determined in tax-evasion proceedings in respect of which the guarantees of criminal procedure will apply. The question thus arises whether the person who has to pay taxes may be obliged, in the tax-evasion proceedings and with a view to the determination of the supplementary tax, to supply information on his financial circumstances.” 28. The Federal Court then reiterated the principle of tax proceedings, according to which the burden of proof fell on the tax authorities to demonstrate that a person had not declared certain taxable income. It could not be said that the person concerned was obliged to incriminate himself. Rather, the person had merely to provide information as to the source of untaxed income which the tax authorities already knew existed. If in such a situation the person concerned had the right to remain silent, the entire tax system would be called into question. The regular tax-assessment proceedings would then have to be conducted according to the principles of criminal proceedings. The right to remain silent would complicate control, or even render it impossible. This could not be the purpose of Article 6 of the Convention. 29. According to the Federal Court, there were a number of provisions in criminal law obliging a person to act in a particular way so as to enable the authorities to obtain his conviction. Reference was made in particular to lorries which had to be equipped with a tachograph recording speed and driving hours. If there was an accident, the lorry driver was obliged to hand over the device. Similarly, a motorist might be obliged to submit to a blood or a urine test, and he would be punished if he refused to do so. 30. The Federal Court noted an essential difference from Funke v. France (judgment of 25 February 1993, Series A no. 256-A), namely, that in that case the tax authorities believed that certain documents existed although they were not certain of the fact. In the present case, the authorities were aware of the income which the applicant had invested. The purpose of their intervention was to ascertain whether this income itself stemmed from income or assets which had been duly taxed. All the applicant had to do was to explain the source of this income. In fact, he should have done so during the regular tax-assessment proceedings. 31. Finally, the Federal Court referred to Salabiaku v. France, according to which presumptions of fact and law were compatible with Article 6 § 2 of the Convention as long as they were confined within reasonable limits and the rights of the defence were maintained (judgment of 7 October 1988, Series A no. 141-A, pp. 15-16, § 28). 32. The Federal Court concluded that there was no breach of the applicant’s right to the presumption of innocence or of his right not to incriminate himself. C. Subsequent developments 33. On 5 June 1996 the cantonal authorities imposed a fourth fine, of CHF 5,000, on the applicant, although this fine never acquired legal force. 34. Following the Federal Court’s decision of 7 July 1995, an agreement was reached between the applicant and the cantonal tax authorities on 28 November 1996 which closed all tax and criminal tax proceedings for the years 1981/82 until 1995/96. On the one hand, the agreement fixed the amount to be paid by the applicant, namely a total sum of CHF 81,878.95, including a fine amounting, after reduction by one-third, to CHF 21,625.95. On the other hand, it was agreed that all pending proceedings were cancelled, including the proceedings concerning disciplinary fines; and that the fine already paid was to be deducted from the total amount of taxes and criminal penalties. Finally, the agreement stated : “... the proceedings which are already pending before the Strasbourg organs of the European Convention on Human Rights against the decision of the Federal Court on account of a disciplinary fine will not be affected by this agreement.” | The applicant, who had had tax evasion proceedings instituted against him, was requested, on various occasions, to submit all the documents concerning the companies in which he had invested money. He failed to do so on each occasion and was fined four times. He alleged that the criminal proceedings against him had been unfair and contrary to the right to a fair trial in that he had been obliged to submit documents which could have incriminated him. |
920 | Absence of outside influence | I. PARTICULAR CIRCUMSTANCES OF THE CASE 8. The applicant, who is a United States citizen, lives in Munich in the Federal Republic of Germany. Wishing to build a holiday residence in Hopfgarten, a village in the Austrian Tyrol, she approached, with the assistance of municipal officials, the owners of a plot of land which had until then been used for agricultural purposes. Sale negotiations began in 1971 and apparently led, in 1973, to an initial contract. One year later, Mrs. Sramek paid to the vendors the greater part of the agreed price. However, the definitive contract was not drawn up until 13 January 1977. 9. Under section 3 of the Tyrolean Real Property Transactions Act (Grundverkehrsgesetz) 1970, as amended by, inter alia, an Act of 28 November 1973 which came into force on 1 January 1974 ("the 1970/1973 Act"), the contract could not take effect unless it were approved by the local Real Property Transactions Authority (Grundverkehrsbehörde); in fact, it contained a clause which so provided. The 1970/1973 Act applies to agricultural and forestry land and also to any land over which rights are acquired by, in particular, a natural person who does not possess Austrian nationality (section 1(1) and (2)). 10. The local Real Property Transactions Authority for Hopfgarten at the office of the Kitzbühel District Administration (Bezirkshauptmannschaft), to which the contract had been submitted, approved it on 7 March 1977; the decision (Bescheid) was dated 31 March. 11. On 6 April, the Real Property Transactions Officer (Landesgrundverkehrsreferent, "the Transactions Officer", see paragraph 23 below) at the Government Office of the Tyrol (Amt der Landesregierung) in Innsbruck exercised his right of appeal (Berufung) to the Regional Real Property Transactions Authority (Landesgrundverkehrsbehörde; section 13(3) of the 1970/1973 Act and see paragraphs 22-23 below). In his view, the contract fell foul of section 4(2) of the 1970/1973 Act. Under that sub-section, where the purchaser of real property is a foreigner a contract of the kind in question can be approved only "if the acquisition of rights (Rechtserwerb) is not contrary to political (staatspolitisch), economic, social (sozialpolitisch) or cultural interests; such a conflict (Widerspruch) is deemed to exist, in particular, where, (a) having regard to the extent of existing foreign ownership or to the number of foreign owners, there is a risk of foreign domination (Uberfremdung) in the municipality or locality concerned, (b) ... ." In the submission of the Transactions Officer, there were, in fact, already 110 foreign landowners in Hopfgarten and it could be seen from a series of decisions of the Regional Authority that this municipality was one of those where the danger of foreign domination was imminent. The contract in question was therefore contrary to social and economic interests within the meaning of the above-mentioned Act. The applicant received a copy of the appeal but did not file any observations in reply. 12. The Government Office of the Tyrol was organised in a number of "groups" and each group comprised several "divisions". In the present case, the Transactions Officer was the director of group III; his secretariat was provided by one of the seven divisions in that group, namely division III b. 2. 13. On 3 June 1977, the Regional Real Property Transactions Authority at the Government Office of the Tyrol held a hearing. The Regional Authority sat in camera but the parties, namely the Transactions Officer and Mrs. Sramek, were present. The latter appeared in person, without the assistance of a lawyer. In accordance with section 13(4), no. 1, of the 1970/1973 Act (see paragraph 24 below), the Regional Authority was composed as follows: the elected mayor of a municipality in the Tyrol, who was a farmer experienced in real estate matters, as chairman; a judge of the Innsbruck Court of Appeal; a civil servant from division III b. 3 - one of the seven divisions in group III - of the Government Office, as rapporteur; the head of group III d; the director of the Regional Forestry Service, being the head of group III f; a farmer; and a lawyer. The secretariat was provided by division III b. 3, to which the rapporteur belonged. 14. According to the minutes of the hearing, the rapporteur presented the facts and read out the expert opinions and observations received during the course of the investigation; the latter concerned, inter alia, the percentage of the parcels of land in Hopfgarten which was in foreign hands. The Transactions Officer then requested the Authority to uphold his appeal on the ground that as there was already a risk of foreign domination in Hopfgarten, the acquisition of the land in question would be contrary to social and political interests. The applicant stated that she had signed the initial contract (Erstvertrag), which could not then be found, on 13 March 1973. As early as 23 January 1971, she had reached an agreement to purchase (Vertragsabsprachen) and had received assurances that all would go well. Since that time, she had come to Austria several times each year to settle the matter. Her husband was living with the family in Munich, where he worked, but would be retiring shortly. She declared that she herself was prepared to apply for Austrian nationality. Their permit to reside in the Federal Republic was temporary and she did not wish to return to the United States. She added that she had already made a first payment of 111,591 schillings. In conclusion, she requested that the contract be approved. 15. On the same day, that is 3 June 1977, the Regional Authority upheld the appeal: referring to the above-mentioned section 4(2)(a) of the 1970/1973 Act, it refused to approve the transfer of title. Its decision (Bescheid) was dated 16 June. The Authority noted firstly that according to a statement from the municipality of Hopfgarten, which had not been challenged at the hearing, there were 110 foreign landowners in Hopfgarten, owning 5.6 hectares of land. There were 4,800 inhabitants and 1,100 families in the locality, though not all of them were landowners. The proportion of non-Austrian owners already exceeded 10 per cent and the extent of their holdings revealed a tendency towards foreign domination. The Authority then recalled that for some years past it had been refusing to approve the transfer of land in Hopfgarten to foreigners since it had concluded that there was a risk of foreign domination in the area. It had to take account, inter alia, of the effects of its decision on third parties. According to the Authority, experience showed that the approval of a contract between a landowner and a foreigner led to an influx of other foreigners who also wished to buy land in the locality. This caused prices to rise substantially, making it very difficult, if not impossible, for the indigenous population to find housing for themselves. For these reasons and in view of the scarcity of building plots in the Tyrol, very strict legal (gesetzlich) control had to be exercised: sales and purchases could normally be approved only if they contributed to the establishment or maintenance of an effective (leistungsfähig) agricultural population or if they served to satisfy domestic land needs (inländischer Bodenbedarf) for any kind of public or social purposes. However, Mrs. Sramek was intending to use the land in question - at least for some time - for the construction of a holiday residence. Such an objective could easily be satisfied by the local hotel trade which, furthermore, was losing potential customers as a result of the construction of villas by foreigners. The acquisition contemplated was therefore prejudicial to economic and social interests and thus fell foul of, in particular, section 4(2)(a) of the 1970/1973 Act. Lastly, the Regional Authority rejected the applicant ’ s argument that she had already concluded a contract in 1973, that is at a time when American citizens were treated on an equal footing with Austrians by virtue of a bilateral treaty dating from 1928. The Authority emphasised firstly that it had to base itself on the factual and legal situation obtaining at the time when the decision had to be taken. In its view, the 1928 treaty had not established any equality between citizens of the two States in the area concerned. In the case in question, the transfer of ownership contemplated fell under Article 1 para. 2, as interpreted by the Ministry of Foreign Affairs in a 1973 memorandum which stated that the general regulations with regard to foreigners were applicable. Even if this interpretation had not been known at the time when the initial contract had allegedly been concluded (13 March 1973, see paragraph 14 above) - though this was not the case, since the above-mentioned memorandum dated from early 1973 -, Mrs. Sramek could not claim that she had acted in good faith: she was obliged under section 15 of the 1970/1973 Act to seek approval of the contract within two months and she alone bore the responsibility for not having done so. 16. On 22 August 1977, the applicant appealed to the Constitutional Court (Verfassungsgerichtshof) against the decision of the Regional Authority. She claimed that her right to inviolability of property and her right to a decision by the legally competent court (gesetzlicher Richter) had been infringed and relied on Article 5 of the Basic Law (Staatsgrundgesetz), Article 83 para. 2 of the Federal Constitution (Bundes-Verfassungsgesetz) and Article 6 (art. 6) of the Convention. As concerns the first complaint, Mrs. Sramek alleged that the Regional Authority had applied section 4(2)(a) of the 1970/1973 Act in a misconceived (denkunmöglich) manner by adopting an illogical approach; amongst other things, it had concluded that there was a danger of foreign domination in Hopfgarten without being in possession of detailed documentation, without defining the risk in question and without enquiring into the actual position in Hopfgarten regarding real property ownership. She further contended that the Regional Authority was not an "independent tribunal" within the meaning of Article 6 (art. 6) of the Convention. On these grounds, she requested the Constitutional Court to annul the decision under appeal or, in the alternative, to refer the case to the Administrative Court (Verwaltungsgerichtshof). Mrs. Sramek supplemented her grounds of appeal on 9 March 1978. She asserted that her lawyer had not been able to consult the minutes of the Regional Authority ’ s deliberations. She had, in fact, learnt that the Authority had not given its ruling on 3 June 1977, immediately after the closure of the hearing. She inferred from this that the decision complained of had not been taken by the legally competent court. She requested the Constitutional Court to provide her lawyer with an opportunity of reading the above-mentioned minutes. 17. The Constitutional Court dismissed the appeal on 3 March 1979 (Erkenntnisse und Beschlüsse des Verfassungsgerichtshofes, 1979, vol. 44, no. 8501). It took the view that the Regional Authority was indeed a "tribunal" within the meaning of Article 6 (art. 6) of the Convention. It gave decisions which the executive could neither annul nor vary. As regards its members - who included a judge -, they had a degree of independence equal to that of judges. They were not bound by any instructions in the exercise of their functions and they could not be removed during their three-year term of office, except for reasons which would have precluded their appointment or if they were permanently prevented from carrying out their duties. The Constitutional Court accordingly held that Article 6 (art. 6) had not been violated. The applicant ’ s other ground of appeal was also rejected. Recalling that it had already held in another case, in 1974, that it was not misconceived to conclude that there was a danger of foreign domination in Hopfgarten, the Constitutional Court stated that it saw no reason to change its opinion in the instant case. As regards the facts noted by the Regional Authority, they had not been the subject of any dispute during the administrative proceedings. The Constitutional Court sat in camera and gave judgment without holding a hearing. 18. Even before the above-mentioned judgment had been delivered, the plot in question was sold to an Austrian who, according to the Government, turned it back into grazing-land. The Regional Authority had taken the view that it could examine the new contract, provided that its decision was held in abeyance pending the outcome of the Constitutional Court ’ s proceedings. 19. The Government stated that during the last ten years or so the Regional Authority had not approved any acquisition of real property in Hopfgarten by a foreigner. They supplied a list of thirteen refusals in the period between July 1973 and February 1983; according to the applicant, the list was insufficiently detailed to be conclusive. | The applicant, a United States citizen, complained of a procedure under the Tyrol Real Property Transactions Act whereby authorisation to acquire certain land was refused to her as an alien on the ground that there was a danger of foreign property ownership becoming excessive. She alleged in particular that the Regional Real Property Transactions Authority, which had heard her case, was not an independent and impartial tribunal. The latter was composed of, inter alia, three civil servants from the governmental services of the Land dealing with agricultural and forestry real property matters, one of whom acted as rapporteur. |
688 | Negationism and revisionism | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 5. The applicant was a Member of Parliament and chairperson of the National Democratic Party of Germany (NPD) in the Land Parliament of Mecklenburg-Western Pomerania. On 27 January 2010, Holocaust Remembrance Day, a memorial event was held in the Land Parliament. The members of the NPD Parliamentary group, including the applicant, did not attend. The following day, the applicant gave a speech in Parliament on the subject listed in the day’s agenda as: “In memory of the victims of the worst disaster in German maritime history – Commemoration of those who died on the [military transport ship] Wilhelm Gustloff ”. During that speech, the applicant uttered, inter alia, the following: “With the exception of the groups whose cooperation you have bought, hardly anyone is truly, emotionally taking part in your theatrical display of concern. And why is that? Because people can sense that the so-called Holocaust is being used for political and commercial purposes ... Since the end of the Second World War, Germans have been exposed to an endless barrage of criticism and propagandistic lies – cultivated in a dishonest manner primarily by representatives of the so-called democratic parties, ladies and gentlemen. Also, the event that you organised here in the castle yesterday was nothing more than you imposing your Auschwitz projections onto the German people in a manner that is both cunning and brutal. You are hoping, ladies and gentlemen, for the triumph of lies over truth.” (“ ... Bis auf die von Ihnen gekauften Grüppchen und Gruppierungen nimmt kaum noch jemand wirklich innerlich bewegt Anteil an dem Betroffenheitstheater. Und warum ist das so? Weil die Menschen spüren, dass der sogenannte Holocaust politischen und kommerziellen Zwecken dienbar gemacht wird ... Die Deutschen sind seit Ende des Zweiten Weltkrieges einem ununterbrochenen Trommelfeuer von Vorwürfen und Propagandalügen ausgesetzt, deren Bewirtschaftung in verlogener Art und Weise in erster Linie von Vertretern der sogenannten demokratischen Parteien bewirtschaftet wird, meine Herrschaften. Auch was Sie gestern hier im Schloss wieder veranstaltet haben, war nichts anderes, als dem deutschen Volk ebenso raffiniert wie brutal ihre Auschwitzprojektionen überzustülpen. Sie, meine Damen und Herren, hoffen auf den Sieg der Lüge über die Wahrheit. ... ”) 6. The Parliament of the Land of Mecklenburg-Western Pomerania revoked the applicant’s inviolability from prosecution (see paragraph 29 below) on 1 February 2012. B. The proceedings at issue 7. On 16 August 2012 the Schwerin District Court, sitting as a bench of the presiding professional judge Y and two lay judges, convicted the applicant of violating the memory of the dead and of defamation (see paragraph 28 below) through the utterances cited above; the court sentenced him to eight months’ imprisonment, suspended on probation. 8. The applicant appealed on points of fact and law. In respect of that appeal the Schwerin Regional Court held a main hearing on 25 March 2013, which included the taking of evidence. The applicant did not comment on the charges against him. In its judgment of the same day, the court dismissed the applicant’s appeal as ill-founded. 9. In its judgment, the Regional Court cited the applicant’s speech in its entirety, highlighting the excerpts quoted above, which it considered relevant to an assessment of the applicant’s criminal liability. It considered that the applicant’s above-cited utterance, viewed objectively, had had the following content: “The applicant asserted that the extermination of the Jews linked to Auschwitz had not taken place, or at least not in the way that it had been reported by historians. The atrocities associated with Auschwitz were a lie and a projection. The lies surrounding Auschwitz had been used since the end of the Second World War to serve various political and economic purposes.” The Regional Court concluded that the applicant had thereby denied in a qualified manner the systematic, racially motivated, mass extermination of the Jews carried out at Auschwitz during the Third Reich ( qualifizierte Auschwitzleugnung ). 10. In arriving at this conclusion, the Regional Court considered that the applicant had first spoken of a “barrage of propagandistic lies”, to which the Germans had been endlessly exposed since the end of the Second World War, and mentioned the “Auschwitz projection” ( Auschwitzprojektion ) as an example thereof. Linguistically, he had used the terms “lie” and “projection” in close succession as having the same intended meaning, as could be seen in the structure of the sentence. He had used the term “Auschwitz projection” in a sequence that had also contained the terms “propagandistic lies”, “dishonest” and “lie”, connected by the word “also”. With regard to perpetrators and motives in respect of “the Auschwitz lie”, he stated that the propagandistic lies had been “cultivated in a dishonest manner primarily by representatives of the so-called democratic parties” and that “the so-called Holocaust [was] being used for political and commercial purposes”. 11. The Regional Court noted that terms such as “Auschwitz lie”, “Auschwitz myth” and “Auschwitz cudgel” – which were used time and again in connection with the claim that the murder of millions of Jews during the Third Reich was a (Zionist) swindle – epitomised the assertion that the Holocaust and the events that had taken place in Auschwitz had not occurred as documented in official history books. The term “Auschwitz projection” served that same purpose. The applicant’s reasoning for the alleged “Auschwitz projection” – namely the “[use of the] Holocaust for political and commercial purposes” – invoked an idea that had occupied German courts in numerous cases: namely, the association of “Auschwitz denial” with a particular motive – that is to say the alleged suppression and exploitation of Germany (for the benefit of the Jews), which German courts had determined to constitute a “qualified Auschwitz denial”. The Regional Court ruled out the possibility that the applicant’s statements – which, objectively, were to be understood as constituting a “qualified Auschwitz denial” – could have been misunderstood. 12. The Regional Court observed that the applicant had not commented on the speech during the appeal hearing and that his lawyer had put forward unconvincing interpretations. It was not in dispute that large parts of the applicant’s speech did not raise an issue under criminal law, either because they did not constitute criminal offences or because of the applicant’s non ‑ liability ( Indemnität, see paragraph 29 below). However, these parts of the applicant’s speech could not mitigate or whitewash ( schön reden ) the utterance cited above. It considered that the applicant had chosen the Wilhelm Gustloff as a subject by way of creating a contrast to the memorial event of 27 January 2010. In large parts of his speech he had referred to German victims of the Second World War – in particular those who had been on the Wilhelm Gustloff – and to other mass murders that had occurred in history. This did not raise an issue under criminal law. In so far as he had criticised the remembrance of the victims of National Socialism and had used dramatic, striking terminology (such as “guilt cult”, “guilt-cult events” and “theatrical display of concern”) to that end, he could rely on his right to freedom of expression as a Member of Parliament, which included the right to make absurd statements in a speech to Parliament. 13. However, those statements could not mitigate or conceal the qualified Auschwitz denial. The latter had constituted only a small part of the applicant’s speech and the applicant had inserted that denial into the speech as if “inserting poison into a glass of water, hoping that it would not be detected immediately”. For that reason, the Speaker of Parliament had not issued a sanction during the applicant’s speech, and the MPs present had only expressed their indignation. The Regional Court was convinced that the applicant had intended to convey his message exactly in the way that it had been perceived. He wanted to question the accepted truth about Auschwitz and to “sneak” this into Parliament ( dem Parlament “unterjubeln”) in such a way that no parliamentary measures would be taken. 14. The Regional Court found that the applicant’s qualified Auschwitz denial constituted defamation under Article 187 of the Criminal Code (see paragraph 28 below). The victims of the offence were those Jewish people who – as part of the German population – had been persecuted during the Nazi tyranny because of their religion or their ethnic origin and who had either lost their lives as a result or survived such persecution. The systematic mass murder of the Jews, committed in the concentration camps during the Second World War, was an established historical fact. The qualified Auschwitz denial given by the applicant was tantamount to an untruth. The applicant’s assertions were capable of defaming the persecution of the Jews in Germany ( das Verfolgungsschicksal der betroffenen Juden in Deutschland verächtlich zu machen ) – an event which formed an inherent part of their personal dignity. The speech had been given in Parliament and had been broadcast over the Internet at the same time. The applicant had acted with intent. He could not rely on his right to freedom of expression in respect of his denial of the Holocaust. In making his defamatory statements, the applicant had also denigrated the memory of those murdered in Auschwitz during the Nazi dictatorship because of their Jewish origins. He was thus also guilty of violating those peoples’ memory under Article 189 of the Criminal Code (see paragraph 28 below). 15. The applicant could not invoke his inviolability from prosecution as a Member of Parliament, because the Parliament of Mecklenburg-Western Pomerania had revoked it (see paragraph 6 above and paragraph 29 below). Nor was the applicant’s criminal liability barred by his non-liability under Article 24 § 1 of the Constitution of the Land of Mecklenburg-Western Pomerania and Article 36 of the Criminal Code (see paragraph 29 below), because defamation ( verleumderische Beleidigungen ) – under both Article 187 and Article 189 of the Criminal Code – did not fall within the scope of that non-liability. In so far as the applicant may have erred in his understanding of the scope of his non-liability, this did not affect his criminal liability. 16. On 25 March 2013 the applicant lodged an appeal on points of law against the above-mentioned judgment with the Rostock Court of Appeal. 17. After learning that one of the three judges of the Rostock Court of Appeal responsible for adjudicating that appeal, X, was the husband of the professional District Court judge Y, who had convicted the applicant at first instance (see paragraph 7 above), the applicant, by means of a written submission dated 5 August 2013, lodged a complaint of bias in respect of judge X. 18. On 6 August 2013 judge X commented in writing on his alleged bias, stating that his wife had – in view of the extensive media coverage of the case – informed him about the course of the proceedings before the District Court. Apart from that, the proceedings had – in line with their general practice – not formed part of their conversations. He was not biased in the proceedings at issue. He also emphasised that the Court of Appeal was called upon to examine the Regional Court’s judgment, not that of the District Court. 19. On 16 August 2013 the Court of Appeal, with the participation of the challenged judge X, dismissed the bias complaint as inadmissible under Article 26a of the Code of Criminal Procedure (see paragraph 31 below). It explained that it had only examined the appellate judgment delivered by the Regional Court, not the first-instance judgment delivered by the District Court. Following the applicant’s appeal on points of fact and law, the Regional Court had not been called on to review the District Court’s judgment, but rather had had to conduct a main hearing and to comprehensively establish the circumstances of the case anew – both in fact and in law. The fact that X and Y were married could not in itself lead to a fear of bias. The complaint was thus completely ill-suited ( völlig ungeeignet ). 20. By the same decision, the Court of Appeal dismissed the applicant’s appeal on points of law as ill-founded, finding no legal error to his detriment in the Regional Court’s judgment. 21. On 22 August 2013 the applicant lodged a motion to be heard, alleging that the Court of Appeal had not addressed some of his arguments relating to his criminal conviction and some relating to his bias complaint against judge X, notably that X, if the appeal on points of law were granted, would have to criticise his wife indirectly, which he would be reluctant to do; that the spouses had talked about the subject matter of the proceedings and that, in the absence of a statement by X specifying the content of the discussions, it had to be assumed that they talked about the key legal issues of the case and that X was hence not impartial. The bias complaint against X had, at least, to be deemed admissible and be adjudicated without X’s participation, even more so as X was the rapporteur. He requested that the decision of 16 August 2013 be quashed and the proceedings concerning the appeal on points of law be continued. 22. By the same submission, he lodged a bias complaint against the three judges who took the decision of 16 August 2013. There were serious doubts as to their impartiality, as they had not even remotely addressed the applicant’s submission in his appeal on points of law and did not seem to have the slightest problem with the fact that X had indirectly reviewed his wife’s judgment. They even assigned X as the rapporteur in the case and dismissed the applicant’s bias complaint against X as inadmissible. This showed that their approach to the subject matter of the proceedings was ill-considered and dominated by inappropriate ( sachfremd ) considerations concerning the applicant. The procedural approach employed was arbitrary, notably because the conditions of Article 26a of the Code of Criminal Procedure were not met. It was evident that the bias complaint did not call for a purely formal decision, but would have required an in-depth assessment. The arbitrary processing of the bias complaint gave raise to doubts as to the impartiality of the judges who took that decision. 23. On 11 November 2013 the Court of Appeal dismissed the bias complaint against all three judges who took the decision of 16 August 2013. Sitting as a bench of three judges, none of whom had been involved in the decision of 16 August 2013, it noted that bias complaints that were lodged after a decision to dismiss an appeal on points of law as ill-founded were, in principle, belated and thus inadmissible under Article 26a of the Code of Criminal Procedure. For a bias complaint to be admissible, it had to be lodged prior to the decision dismissing the appeal on points of law as ill ‑ founded. This would equally be true where the bias complaint was made in conjunction with an ill-founded motion to be heard. The purpose of Article 356a of the Code of Criminal Procedure, which concerned breaches of the right to be heard in a decision on an appeal on points of law, was to provide the Court of Appeal with the opportunity to remedy a breach of a right to be heard by way of another assessment of the merits of the appeal on points of law. Its purpose was not, however, to enforce ( Geltung verschaffen ) a belated, and thus inadmissible, bias complaint through an impertinent claim that the right to be heard had been breached. However, in the present case, the decision of 16 August 2013 not only concerned the dismissal of the appeal on points of law as ill-founded, but also a bias complaint. In view of these particularities, it was not appropriate to adjudicate the applicant’s subsequent bias complaint in accordance with Article 26a of the Code of Criminal Procedure, as that provision was to be interpreted narrowly and was foreseen for exceptions, with its scope in principle limited to purely formal decisions. The applicant’s subsequent bias complaint was thus admissible. 24. Turning to the merits, the court found that the applicant’s second bias complaint against the three judges was, however, ill-founded. Doubts as to the impartiality of a judge were justified where the person alleging bias, based on a sensible assessment of the facts known to him, has reason to believe that the judge concerned would take a position which could interfere with his impartiality. The decisive standpoint was that of a reasonable defendant and the ideas that a party to the proceedings, who was mentally sound and in full possession of his reason ( ein geistig gesunder, bei voller Vernunft befindlicher Prozessbeteiligter ), may have when assessing the circumstances in a serene manner, which could reasonably be expected of him. As a rule, the participation of a judge in earlier decisions was not a ground for objecting to a judge ( Ablehnungsgrund ), because a reasonable defendant must assume that the judge did not, thereby, determine his position for future decisions. The situation was different where particularities of the prior involvement, such as grossly flawed or even arbitrary (wrong) decisions to the detriment of the person concerned, gave rise to a (well-founded) suspicion of partiality in an individual case. 25. In the present case, such grounds justifying the objection had neither been submitted by the applicant nor were they evident. The applicant had not substantiated objectively reasonable circumstances giving rise to a fear of bias. The prior involvement of a judge with the substance matter of the proceedings was, in itself, never a ground for objecting to a judge, as a reasonable defendant can assume that the judge will approach the matter without bias, even if he had previously formed an opinion on the case. This also applied to a judge dealing with appeals on points of law. It was true that the applicant had additionally submitted that the very manner of the prior involvement proved the partiality of the challenged judges. However, specific circumstances which would justify such fear also from the perspective of a reasonable applicant were not apparent. The applicant’s submission was, in substance, limited to complaining that the judges had not followed his line of reasoning and to alleging that the judges had thus “repeatedly and intentionally” breached his right to be heard and that they proceeded in an “objectively arbitrary” manner. This was not sufficient. A sensible assessment of the decisions to the applicant’s detriment, which he considered flawed, did not justify a fear of bias in respect of the challenged judges. 26. On 14 November 2013 the Court of Appeal rejected the applicant’s objection to its decision of 16 August 2013, in which he alleged a violation of his right to be heard, concerning his appeal on points of law. 27. On 5 June 2014 the Federal Constitutional Court declined to accept the applicant’s constitutional complaint for adjudication, without providing reasons (no. 2 BvR 2636/13). | This case concerned the conviction of a Land deputy for denying the Holocaust during a speech in the regional Parliament. |
1,066 | Right to a fair trial (Article 6 of the Convention) | I. THE particular circumstances of the case 7. The applicant is a freelance tax consultant. 8. On 14 December 1989 the Inspector of Direct Taxes sent the applicant an assessment of supplementary income tax ( naheffingsaanslag ) for the year 1984. In accordance with the applicable provisions (see paragraph 17 below) a fiscal penalty was additionally imposed to an amount equal to that of the assessment. The penalty came to 38,656 Netherlands guilders (NLG). 9. On 20 December 1989 the applicant lodged an appeal against this assessment with the Taxation Division of the Leeuwarden Court of Appeal ( gerechtshof ). By letter of 21 December the registrar of that court asked the applicant to pay a court registration fee of NLG 75 pursuant to section 5 of the Taxation Disputes (Administrative Jurisdiction) Act ( Wet administratieve rechtspraak belastingzaken ). 10. The applicant’s appeal was declared inadmissible by the President of the Taxation Division on 23 March 1990 on the ground that the court registration fee had not been paid. 11. On the same day the applicant lodged an objection ( verzet ) against this decision with the Taxation Division. He submitted that he had sent an order to his bank for the payment by bank transfer of the court registration fee, but that that order had not been carried out. In his view this error on the part of the bank could not be held against him. 12. Having held a hearing on 19 September 1990, the Taxation Division of the Court of Appeal declared the applicant’s objection unfounded on 26 October. It held that, as the applicant had himself chosen to make use of the services of a bank, it had been up to him to see to it that his order was correctly carried out. 13. The applicant lodged an appeal on points of law with the Supreme Court ( Hoge Raad ) on 20 November 1990. He submitted that the Court of Appeal had erred in law by holding him responsible for a mistake made by his bank in carrying out his transfer order. In the alternative, he submitted that the imposition of a fiscal penalty amounted to a penal sanction, and that it was inappropriate to levy a court registration fee in any case concerning the determination of a “criminal charge”. The Deputy Minister of Finance ( Staatssecretaris van Financiën ) filed a written statement of defence ( vertoogschrift ). 14. One of the advocates-general to the Supreme Court submitted an advisory opinion on 19 November 1991. He did not address the applicant’s primary submission, apart from expressing the view that the decision of the Court of Appeal had been correct, but gave extensive reasons why the alternative submission should be rejected. 15. The applicant did not receive a copy of the advisory opinion until the Supreme Court delivered its judgment. 16. The Supreme Court dismissed the applicant’s appeal on 17 June 1992. It held that a failure on the part of a bank to carry out an order for the transfer of a court registration fee could not be held against the person who had given such an order if the latter saw to it that the payment was made as soon as possible after he could reasonably be expected to be aware of such failure. Nevertheless, it appeared that the applicant had not paid the court registration fee at all and his primary submission had therefore to be rejected. It further held that the court registration fee in question was not such as to constitute any real impediment to a taxpayer’s right of access to a court, and that in appropriate cases a reduction of the fee in question could be granted. The applicant’s alternative submission was therefore also rejected. | In December 1989 the applicant, a freelance tax consultant, received an assessment for supplementary income tax and notification of a fiscal penalty raising the amount due by 100% to a total of 38,656 Dutch guilders. He appealed to the Tax Chamber of the Court of Appeal. The latter declared the appeal inadmissible on the ground that the court registration fee had not been paid. The applicant unsuccessfully appealed on points of law to the Supreme Court. He complained that he had been a victim of a violation of the right to a fair trial in that he had not been able to respond to the advisory opinion submitted to the Supreme Court by the Advocate-General. |
168 | Sterilisation operations | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant is of Roma ethnic origin. She was born in 1983 and lives in Nálepkovo. A. Sterilisation of the applicant at the Gelnica Hospital 6. On 25 April 2001, during the delivery of her second child, the applicant was sterilised by means of tubal ligation at the gynaecology and obstetrics department of the hospital in Gelnica (“the Gelnica Hospital ”). The Gelnica Hospital was a public hospital administered by the Ministry of Health at that time and until the end of 2002. 7. During her pregnancy the applicant visited her doctor regularly. She was informed that the delivery would be via caesarean section. 8. According to the applicant ’ s medical records, the applicant was brought to the hospital in labour by an ambulance at 7.50 a.m. on 25 April 2001. At 9 a.m. on the same day, when her contractions were occurring at five minute intervals, the applicant was administered premedication in view of the envisaged caesarean section. It included a benzodiazepine derivative which is used for its sedative, anxiety-relieving and muscle-relaxing effects. 9. Following a handwritten entry on the administration of the premedication, the medical record contains a typed entry on the next page, according to which the applicant had requested that a sterilisation procedure be carried out on her reproductive organs during the delivery, and that she had been informed about the irreversible nature of such an operation and of her being unable to conceive a child in the future. The entry is signed by a doctor and it also bears the signature of the applicant. 10. The applicant later declared that, after the administration of the premedication, she had been approached by a member of the medical staff who was carrying three A4 size pieces of paper. The staff member had taken her hand to help her sign the papers. The applicant had been in labour and had felt as if she were intoxicated under the influence of the medication. She had neither had the strength nor the will to ask what the documents contained. She remembers a doctor who was present saying that she would die unless she signed the papers. She had therefore not objected to signing the papers with the assistance of the staff member. 11. The applicant ’ s child was born at 9.35 a.m. 12. Another section of the medical records, dated 11 May 2001, indicates that the child was delivered by caesarean section. 13. According to a surgical report in the applicant ’ s medical file, in the course of the operation the doctors discovered a large fissure running the length of the scar from a previous caesarean section on the applicant. After the child ’ s delivery, the doctors discovered a rupture of the applicant ’ s uterus. It had probably been the result of the secondary healing of a suture which had become loose during the course of the applicant ’ s second pregnancy. As a result, the applicant ’ s life had been at risk. The doctors had therefore considered a hysterectomy as a radical solution to the problem. However, in view of the patient ’ s age, they had preferred to carry out reconstructive surgery despite the risk of complications. Since the applicant ’ s uterus was severely damaged, it had been considered certain that a similar situation would occur in any future pregnancy and would pose a grave risk to the life of the applicant and her foetus. After the reconstructive surgery, the doctors had therefore decided to sterilise the applicant in accordance with the request she had made prior to the operation. The report indicates that no complications occurred in the course of the surgery. 14. The applicant was released from the Gelnica Hospital on 11 May 2001. 15. The medical records also contain a copy of a decision of the sterilisation commission established at the Gelnica Hospital. The decision is dated 15 May 2001 and indicates that the commission approved, ex post facto, the applicant ’ s sterilisation, which had been carried out at her request. According to the document, a sterilisation procedure had been justified within the meaning of the Sterilisation Regulation 1972 in view of the applicant ’ s health. 16. At the time of the delivery and sterilisation procedure the applicant was underage. She reached the age of majority ten days later. Her mother, who was the applicant ’ s representative while she was under the age of majority, was not present during the delivery and she had not been asked to give her consent to the sterilisation. 17. The applicant learned about the operation and its nature in December 2002, when her lawyer reviewed her medical file in the Gelnica Hospital. 18. According to the applicant, as a result of the operation, she has suffered from serious physical and mental health problems. The applicant ’ s psychological problems were recognised by a psychologist in a statement dated 7 September 2007. She maintained that she had been ostracised by her husband and the Roma community because of her infertility. 19. With a view to describing the overall situation and context in which she had been sterilised, the applicant submitted that she had experienced inferior treatment during her stay at the Gelnica Hospital. In particular, the applicant indicated that patients in the gynaecological and obstetrics ward had been segregated according to their ethnic origin. The applicant had been accommodated in a “Gypsy room” separated from women who were not of Roma ethnic origin. The applicant considered that her ethnic origin had played a decisive role in the decision of the medical staff to sterilise her. Citing a number of international reports, [1] the applicant submitted that discrimination against Roma in Slovakia extended to all facets of their lives. 20. The Government were in disagreement with the applicant ’ s allegations. B. Civil proceedings 21. On 8 December 2004 the applicant sued the Gelnica Hospital for damages before the Spišská Nová Ves District Court. Apart from the relevant provisions of the Slovakian Civil Code, she also relied on Articles 3, 8 and 12 of the Convention. The applicant argued that she had been sterilised contrary to the relevant provisions of Slovak law, as her mother had not given consent to the operation. It had also run counter to relevant international human rights standards. The applicant claimed the equivalent of 17, 310 euros (EUR) in damages and also claimed reimbursement of her costs. 22. Following the privatisation of the Gelnica Hospital, the District Court substituted the Gelnica Municipality as the defendant in the proceedings on 25 May 2005. 23. On 10 February 2006 the District Court dismissed the applicant ’ s action. With reference to the evidence available, it concluded that the operation had been necessary with a view to saving the applicant ’ s life. As such, it could have been performed without her prior consent. 24. On 2 8 March 2006 the applicant appealed. She maintained, inter alia, that her ethnic origin had motivated the doctors to sterilise her. 25. On 28 February 2007 the Košice Regional Court quashed the first ‑ instance judgment. It expressed the view that the sterilisation operation on the applicant could not be considered as life-saving surgery and ordered the first-instance court to re-examine the case in light of that opinion. 26. An expert opinion submitted to the District Court indicated that during the caesarean section the doctors had discovered an extensive injury to the applicant ’ uterus. A hysterectomy, which they had originally considered carrying out, would have been, in the expert ’ s view, acceptable medical practice in the circumstances. The expert considered the alternative solution which the doctors had chosen, namely reconstructive surgery of the uterus, as an intervention which had saved the applicant ’ s life in the circumstances. However, the subsequent sterilisation of the applicant had not been indispensable with a view to preventing an imminent danger to her life. 27. On 7 September 2007 a psychology centre conducted an examination of the applicant and issued a report at the request of the applicant ’ s representative. It was noted that during the examination the applicant had indicated that there was conflict in her marriage, as her husband frequently reproached her for her inability to have more children. The applicant had further indicated that she suffered from stomach pains, loss of appetite and breathing problems. The psychologist concluded that the depressive and pessimistic moods from which the applicant suffered were possibly related to her inability to conceive. 28. In her submissions to the District Court the applicant also relied on views expressed by several experts on sociology and Roma culture indicating that the inability to have children strongly diminished the position of a woman and her family in the Roma community. 29. On 14 May 2008 the District Court ordered the defendant to pay the equivalent of EUR 1, 5 93 to the applicant. It further held that none of the parties were entitled to have the costs of the proceedings reimbursed. 30. The District Court established that the medical staff had failed to obtain informed consent to the applicant ’ s sterilisation prior to the operation. At the relevant time, the applicant had been underage and her legal representative had not signed the request. It determined the amount of compensation with reference to Regulation 32/1965. The court did not consider it necessary to avail itself of its right to increase the award of compensation above the rates indicated in the regulation. It noted that the applicant had married the father of her children since bringing the action and had not shown that her position in the Roma community had deteriorated. 31. By an additional judgment of 11 June 2008 the District Court formally rejected the remainder of the applicant ’ s claims and ordered the defendant to reimburse the State ’ s costs incurred in the proceedings. 32. On 23 June 2008 the applicant appealed. She argued that the compensation awarded to her was insufficient in view of the scope and consequences of the damage which she had suffered, and complained that the District Court had dismissed her request for reimbursement of her legal costs. 33. On 27 October 2009 the Regional Court upheld the first-instance judgment on the merits to the extent that it was challenged by the applicant. The Regional Court referred to the opinion of an expert indicating that a third pregnancy would be highly risky for both the applicant and the foetus. If the applicant had not agreed to her sterilisation, she would have been required to confirm in writing that she had been advised that any future pregnancy would threaten her life. Albeit that it could not be established with absolute certainty that such a situation would occur, the existence of such a risk nevertheless justified the conclusion that an increase in compensation under sections 6(2) and 7(3) of Regulation 32/1965 was not justified in the circumstances. 34. The Regional Court further quashed the first-instance decision as to the costs of the proceedings and ordered the District Court to re-examine the issue. C. Criminal complaint 35. On 26 August 2008 the applicant filed a criminal complaint with the District Prosecutor ’ s Office in Spišská Nová Ves. She alleged that the sterilisation operation had been unlawful and had caused her serious bodily harm. The applicant also relied on her rights under the Convention. 36. On 20 October 2008 the District Directorate of the Office of the Judicial and Criminal Police in Spišská Nová Ves dismissed the applicant ’ s complaint. It concluded that no offence had been committed, as the medical staff involved had acted with a view to protecting the applicant ’ s life and health. Furthermore, it was still possible for the applicant to conceive by means of in vitro fertilisation. 37. On 14 November 2008 the Spišská Nová Ves District Prosecutor ’ s Office dismissed the applicant ’ s complaint against that decision. 38. On 14 January 2009 the Košice Regional Prosecutor ’ s Office quashed the lower prosecutor ’ s decision as being premature. 39. Subsequently, the police started a criminal investigation. They took statements from the applicant, her mother and a doctor from the Gelnica Hospital. The doctor stated that complications had occurred in the course of the delivery, as a result of which the applicant ’ s life had been at risk. It had therefore been decided to perform a sterilisation, with the applicant ’ s approval, as a life-saving procedure. In contrast, an expert provided an opinion to the effect that it had not been necessary to sterilise the applicant during the delivery with a view to saving her life. Both the doctor and the expert concurred that the operation had not prevented the applicant from becoming pregnant by means of assisted reproduction. 40. On 31 July 2009 the police closed the investigation, concluding that no criminal offence had been committed. 41. On 16 September 2009 the Spišská Nová Ves District Prosecutor ’ s Office dismissed the applicant ’ s complaint against that decision. It held, with reference to an expert opinion, that the operation had become necessary as, in the course of the delivery, extensive bleeding had occurred due to a rupture of the applicant ’ s uterus. In that situation, the doctors had had to take a decision immediately. After consultation with the head physician, they had decided not to carry out a hysterectomy, which was normally indicated in similar situations, but had elected to reconstruct the uterus with a view to preserving it. The surgical team had then carried out a sterilisation by means of tubal ligation so that the applicant could lead a normal life. The applicant had not suffered irreversible damage to her health and she had given her consent to the procedure. She had reached the age of majority only ten days thereafter. Prior to the delivery she had lived with her partner and had taken care of one child. 42. On 18 November 2009 the Košice Regional Prosecutor ’ s Office, in response to a complaint by the applicant, upheld the findings reached by the police and the District Prosecutor ’ s Office. The letter informing the applicant of this decision further stated that the above-mentioned findings of the civil courts in relation to the case did not bind the prosecuting authorities. 43. At the applicant ’ s request, a prosecutor from the General Prosecutor ’ s Office reviewed the case. In a letter of 8 March 2010 the prosecutor admitted that the operation had not been consented to by the applicant ’ s representative, contrary to the relevant law. That did not mean, however, that the doctors had committed an offence. In particular, they had acted in good faith with a view to protecting the applicant, as they had considered the operation necessary in view of the applicant ’ s health. 44. The public prosecutor noted that the applicant had signed the request while experiencing labour pains and that her sterilisation had not been a life ‑ saving intervention. The provisions of the Sterilisation Regulation 1972 had been interpreted and applied for many years in such a manner that, where it was medically indicated and where the prior agreement of the woman concerned was obtained, sterilisation was carried out immediately after delivery by means of caesarean section. D. Constitutional proceedings 45. On 18 January 2010 the applicant lodged a complaint with the Constitutional Court. She alleged a breach, in the above civil and criminal proceedings, of her rights under Articles 3, 8, 13 and 14 of the Convention, of several provisions of the International Convention on the Elimination of All Forms of Racial Discrimination, of the Convention on the Elimination of All Forms of Discrimination against Women, and a number of constitutional provisions. As regards the civil proceedings, she also alleged a breach of Article 6 of the Convention. 46. The Constitutional Court dismissed the complaint on 5 May 2010. It held that the prosecuting authorities involved could not be held liable for the alleged breach of the applicant ’ s substantive rights which had primarily resulted from her sterilisation in the Gelnica Hospital. As to the civil proceedings, the Constitutional Court found that the Košice Regional Court had given sufficient and relevant reasons for its judgment of 27 October 2009, which had therefore not been arbitrary. There was no appearance of a breach of Article 6 § 1 of the Convention in the proceedings leading to that judgment. The Constitutional Court further found no causal link between the Regional Court ’ s judgment and the other rights on which the applicant had relied. | In this case the applicant alleged that she had been sterilised without her full and informed consent in a public hospital in Slovakia. |
952 | Restrictions on voting rights based on a residence criterion and exercise of the right to vote for non-resident citizens | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1964 and lives in Nancy. He is a university lecturer and researcher in private law and is a member of the French civil service. 9. On 1 September 1995 he was appointed to a post at the French University of the Pacific in Nouméa, New Caledonia, which at the material time was a French overseas territory. The holder of the post was required to live in the territory. 10. The applicant applied to be registered on the electoral rolls for his place of residence. He was entered on the general electoral roll for the municipality of Nouméa but was refused registration on the special electoral roll for the 1998 ballot on self-determination. On 7 April 1997 the mayor of Nouméa notified him that he had been deemed not to satisfy the residence requirements laid down in section 2 of the Act of 9 November 1988 in that he could not show that he had been permanently resident in New Caledonia since 6 November 1988. The applicant did not appeal against that decision. 11. On 5 May 1998 the Nouméa Accord was signed. It laid down transitional arrangements for the political organisation of New Caledonia and for its move to self-determination. It altered New Caledonia's constitutional status, making it a sui generis territory with its own specially designed institutions. Article 77 of the Constitution was consequently amended to provide that the measures required for the implementation of the Accord were to be laid down in an institutional Act. 12. Institutional Act no. 99-209 of 19 March 1999 brought about the twelfth institutional reform in New Caledonia since 1853, giving it its ninth different status since 1976. It strengthened Congress's powers and introduced a ten-year residence requirement for taking part in the election of members of Congress and the provincial assemblies. 13. On 9 April 1999 the applicant applied to be registered on the special electoral roll for the elections to Congress and the provincial assemblies on 9 May 1999 in the municipality of Nouméa. He was refused registration on the ground that he could not show that he had been permanently resident in New Caledonia in the ten years prior to 9 May 1999. 14. The applicant applied to the Nouméa Court of First Instance for a review of the conformity of the Act with the Convention, and for registration on the special electoral roll for the municipality of Nouméa. On 3 May 1999 the court dismissed his applications. 15. The applicant appealed on points of law to the Court of Cassation, complaining that the Court of First Instance had found against him despite the fact that the refusal to register him contravened various provisions of domestic and international law, in particular Articles 1 and 3 of the Constitution of 4 October 1958, Articles 2, 7, 21-1 and 21-3 of the Universal Declaration of Human Rights of 10 December 1948, Article 14 of the Convention, Articles 2-1, 25 and 26 of the New York Covenant of 19 December 1966, Article 6 of the Declaration of the Rights of Man and the Citizen of 26 August 1789, Articles 225-1 and 432-7 of the new Criminal Code, and the Preamble to the Constitution of 27 October 1946. 16. On 13 July 2000 the Court of Cassation dismissed his appeal on the ground that the conditions for taking part in elections to Congress and the provincial assemblies followed from an institutional Act which ranked as constitutional law in that it reproduced the wording of the Nouméa Accord, which itself had constitutional status by virtue of Article 77 of the Constitution. It dismissed the applicant's arguments concerning the provisions of the Convention, holding in particular that the precedence accorded to international undertakings did not apply in the domestic legal order in relation to provisions ranking as constitutional law. 17. The applicant also produced to the Court a decision of 2 June 2000 in which the Court of Cassation had dismissed, on the same grounds, an appeal which was similar to his but which alleged a violation of Article 3 of Protocol No. 1. | The applicant in this case, a French national from mainland France, was refused the right to vote in elections to the Congress of New Caledonia on the ground that he could not prove at least 10 years of residence in the territory. |
156 | Medically-assisted procreation | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant, Mrs Daniela Nedescu, is married to the second applicant, Mr Călin Nedescu. They were born in 1976 and live in Bucharest. 6. In 2008 the applicants, who were childless but wanted to have children, decided to try assisted reproduction at a private clinic, the S. Clinic. It appears that the S. Clinic had previously applied to the National Transplant Agency (“the Transplant Agency”) for authorisation to function as a cell and tissue bank and user in accordance with the legal requirements, an application which was still pending completion in 2008. 7. Following an ovarian stimulation and in vitro fertilisation, seven embryos were obtained, of which three were transferred immediately to Mrs Nedescu, who became pregnant and gave birth. 8. The four remaining embryos were frozen and put in storage at the S. Clinic in November 2008 with a view to their future use by Mrs Nedescu. 9. On 15 July 2009 the procedure for obtaining the required authorisation from the Transplant Agency was completed and the S. Clinic was authorised to act as a medical centre that could function as a storage bank for genetic material. 10. On 24 July 2009, following a criminal investigation into the delivery of the above authorisation, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General ’ s Office of Romania (DIICOT) closed the S. Clinic, seized all the genetic material found there, including the applicants ’ embryos, and transferred it to the Mina Minovici Institute of Forensic Medicine (“the IFM”). The applicants ’ embryos and those of other couples were kept in containers. Each container had different vials for each set of embryos. 11. It appears from a DIICOT report dated 9 November 2009 that the embryos of more than 240 families were seized at the S. Clinic. As with other patients of the Clinic, the applicants were neither informed of the seizure, which they learned about from the media, nor consulted about the transfer of the seized embryos from the S. Clinic to the IFM. 12. On 13 March 2010 the applicants requested that DIICOT allow them to retrieve their embryos as they wished to undergo a new assisted reproduction procedure in another clinic. They pointed out that it was of the utmost importance that they be allowed to retrieve the embryos rapidly since the storage period was to expire in August 2010 and there was a strict procedure for the transfer. 13. On 30 March 2010 DIICOT allowed the applicants to recover the embryos directly from the IFM. They had to be accompanied by an embryologist and provide a special container with liquid nitrogen. 14. On 21 July 2010 the applicants went to the IFM accompanied by an embryologist, however, they were not allowed to retrieve the embryos. They were asked instead to show that the Transplant Agency had approved the transfer. 15. The first applicant, under the supervision of a specialist doctor, therefore attempted to have a new ovarian stimulation in the hope of creating new embryos. 16. However, on 18 August 2010, while being treated for premature menopause, she underwent a medical examination which revealed that her state of health did not allow her to undergo another ovarian stimulation. 17. The applicants joined the criminal proceedings instituted against the administrative board of the S. Clinic and the doctors practising within or in cooperation with it, and sought damages under domestic tort provisions for not being able to use the embryos. In an interlocutory judgment of 29 November 2010 the applicants ’ action was dismissed for lack of victim status on the grounds that the IFM ’ s refusal to allow them to recover the embryos had no link with the crimes allegedly committed by the accused. The applicants were directed to bring a claim for damages before a civil court. 18. The applicants therefore resumed their efforts to retrieve the embryos deposited with the IFM, but were not successful. 19. In November 2010 they brought an action before the Bucharest Court of Appeal against the Transplant Agency and the Ministry of Health, seeking to obtain the agency ’ s authorisation to transfer their embryos to an authorised clinic, in Romania or abroad, where Mrs Nedescu could try again to become pregnant. 20. On 12 December 2010 Mrs Nedescu had another examination, which led to the same conclusions as on 18 August 2010. 21. On 13 December 2010 the Transplant Agency informed the applicants that it refused to approve a transfer of the embryos. It stated that DIICOT had moved the embryos to the IFM unlawfully as the institute had never obtained the required permit to act as a tissue and cell bank. The provisions of the Code of Criminal Procedure relied on by DIICOT had also not provided any guarantees for the safety of the embryos deposited with the IFM. 22. At a hearing on 22 March 2011 the applicants asked the Court of Appeal to order the transfer of the embryos from the IFM to a private clinic of their choice located in Sibiu, the P. Clinic, which was authorised to carry out assisted reproduction and act as a genetic material storage bank. 23. The court dismissed the applicants ’ application on the same day. It relied on the provisions of section 148(4) and (5) of the Health Care Reform Act. It found that the Transplant Agency ’ s refusal to allow the transfer of the embryos had been lawful since neither the S. Clinic nor the IFM had been accredited or authorised to function as genetic material banks and the transfer of genetic material could only be performed between institutions authorised to function as such storage banks. 24. The applicants appealed against the judgment to the High Court of Cassation and Justice. 25. On 12 October 2011 DIICOT appointed a public hospital, the P.S. Hospital, as the new legal custodian for all the embryos, including the ones belonging to the applicants. The transfer of the embryos to the new custodian took place on 19 October 2011. According to a report drafted by the judicial authorities on that occasion, Ms A.M., the doctor from P.S. Hospital who took delivery of the embryos, drew up a disclaimer to the effect that the genetic material listed in the inventory accompanying the embryos had been received without any prior checks of the vials, that it had not been possible for her to check each individual item owing to the absence of the embryologist who had participated in the initial freezing and that the procedures in use at that time were different from those used by the first custodian. 26. On 20 December 2011 the High Court of Cassation and Justice allowed the appeal against the judgment of 22 March 2011 and ordered the Transplant Agency to implement the prosecutor ’ s decision to return the embryos by allowing their transfer from the IFM to an authorised clinic or hospital of the applicants ’ choice in Romania or abroad. It found, firstly, that the Transplant Agency, which was organised as a structure within the Ministry of Health, had been duly informed about the investigating authorities ’ decision to deposit the material seized at the S. Clinic with the IFM, and that, secondly, the Ministry of Health had signed the record drawn up at the end of the procedure for moving the embryos to the IFM, together with the investigating authorities. It held that in so far as the Transplant Agency ’ s task was to coordinate the activities of procuring, processing, preserving, storing, approving and distributing human tissue and cells in Romania, there had been no legal grounds for it to interfere with the implementation of the prosecutor ’ s decision to return the embryos to the applicants. The High Court further relied on the Government ’ s observations submitted to the Court in the case of Knecht v. Romania (no. 10048/10, 2 October 2012), from which it could be seen that the investigating authorities had authorised Ms Knecht to retrieve her embryos from the IFM, and that the Government ’ s understanding was that Ms Knecht had been lawfully entitled to arrange for their transfer to an authorised clinic. The High Court stressed that Mr and Mrs Nedescu ’ s embryos had been stored in the same container as those belonging to Ms Knecht. There was therefore nothing to prevent them from arranging the transfer of their embryos to an authorised clinic or hospital of their choice, in Romania or abroad. Lastly, the court granted costs and fees of 4,000 Romanian lei (RON) to the applicants. 27. On 26 March 2012 DIICOT informed the applicants that the prosecutor had appointed P.S. Hospital as the new legal custodian of their embryos. They therefore had to agree on a transfer date with that institution in order to retrieve the embryos. 28. The applicants contacted P.S. Hospital, which informed them on 27 September 2012 that they could only retrieve the embryos if they were accompanied by a representative from the Transplant Agency, an embryologist from the S. Clinic, where the embryos had been stored initially, and a DIICOT representative. 29. On 1 November 2012 P.S. Hospital informed the applicants that in order to retrieve their embryos they had to agree on a date, obtain an authorisation document from the Transplant Agency, make sure a certified specialist embryologist was present and provide a special container with liquid nitrogen from an accredited transportation company. 30. On 12 November 2012, in reply to a request from the applicants, P.S. Hospital informed them that it could not transfer the remaining embryos to Mrs Nedescu as they had only been appointed as a custodian by DIICOT. Nevertheless, the applicants could attempt to obtain new embryos at the hospital which could then be transferred to her. 31. In a letter dated 7 January 2013 to the Government Agent, a representative of P.S. Hospital reiterated that the embryos could only be retrieved after prior approval from the Transplant Agency and that an embryologist from the S. Clinic and a DIICOT representative had to be present. It also stated that they declined any responsibility for the identification, quality and viability of the frozen embryos deposited with the IFM because DIICOT had not organised any individual identification when the embryos had been transferred. The hospital could therefore only assume that the embryos belonging to the Nedescus were among those that had been transferred to it. The hospital reiterated that the IFM had no authorisation to function as a genetic material bank (for tissues and cells). Furthermore, the hospital did not only have the task of implementing DIICOT ’ s decision to allow the applicants to remove the embryos and ensure respect for the conditions that the removal be made in the presence of an embryologist and include the provision of a container with liquid nitrogen. It also had to comply with the relevant legislation on the removal and transfer of genetic material and with the conditions set down by the Transplant Agency in a decision of 3 June 2011, Decision no. 5. The representative also stated that the existing embryos could be transferred to the mother at the hospital but that the hospital ’ s own doctors would not carry out the procedure as they could not assume any responsibility owing to the quality of the embryos. However, the hospital preferred that such a transfer be performed elsewhere. 32. On 16 January 2013 the applicants applied to DIICOT to be appointed custodians of their own embryos. They indicated that they were able to bear the costs of becoming custodians. A DIICOT prosecutor informed the applicant ’ s lawyer by telephone that the application had been rejected. In a letter dated 18 April 2013 to the Government ’ s Agent, a DIICOT chief prosecutor stated that the cost of appointing the applicants as custodians was very high and that the judicial bodies involved had no competence to make such a decision. In any event, “no formula allowing for consensus among all the parties involved has so far been identified”. 33. Following the criminal investigation of the S. Clinic (see paragraph 10 above), the High Court of Cassation on 21 October 2014 found its managers, owner and the then director of the Transplant Agency guilty of association for the purposes of creating a criminal group. It handed down various prison sentences. III. COUNCIL OF EUROPE DOCUMENTS A. Recommendation 1046 (1986) of the Parliamentary Assembly of the Council of Europe on the use of human embryos and foetuses for diagnostic, therapeutic, scientific, industrial and commercial purposes 41. The relevant parts of the Recommendation read as follows: “...5. [The Parliamentary Assembly] Considering that, from the moment of fertilization of the ovule, human life develops in a continuous pattern, and that it is not possible to make a clear-cut distinction during the first phases (embryonic) of its development, and that a definition of the biological status of an embryo is therefore necessary; 6. Aware that this progress has made the legal position of the embryo and foetus particularly precarious, and that their legal status is at present not defined by law; 7. Aware that adequate provisions governing the use of living or dead embryos and foetuses do not at present exist; 8. Convinced that, in view of scientific progress which makes it possible to intervene in developing human life from the moment of fertilisation, it is urgent to define the extent of its legal protection; 9. Having regard to the variety of ethical opinions on the question of using the embryo or the foetus or their tissues, and to the conflicts between values which arise; 10. Considering that human embryos and foetuses must be treated in all circumstances with the respect due to human dignity...” B. Council of Europe Convention on Human Rights and Biomedicine (“Oviedo Convention”) of 4 April 1997 42. In its relevant parts the Oviedo Convention reads as follows: Article 2 – Primacy of the human being “The interests and welfare of the human being shall prevail over the sole interest of society or science.” Article 18 – Research on embryos in vitro “1. Where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo. 2. The creation of human embryos for research purposes is prohibited.” Article 27 – Wider protection “None of the provisions of this Convention shall be interpreted as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention.” IV. EUROPEAN UNION INSTRUMENTS 43. The relevant parts of Directive 2004/23/EC of the European Parliament and of the Council of 31 March 2004 on setting standards for the quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells provide as follows: “(2) The availability of human tissues and cells used for therapeutic purposes is dependent on Community citizens who are prepared to donate them. In order to safeguard public health and to prevent the transmission of infectious diseases by these tissues and cells, all safety measures need to be taken during their donation, procurement, testing, processing, preservation, storage, distribution and use. ... (7) This Directive should apply to tissues and cells including haematopoietic peripheral blood, umbilical-cord (blood) and bone-marrow stem cells, reproductive cells (eggs, sperm), foetal tissues and cells and adult and embryonic stem cells. ... (13) The donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells intended for human applications should comply with high standards of quality and safety in order to ensure a high level of health protection in the Community. This Directive should establish standards for each one of the steps in the human tissues and cells application process. ... (16) Tissues and cells used for allogeneic therapeutic purposes can be procured from both living and deceased donors. ... (20) Any establishment may also be accredited as a tissue and cell establishment, provided it complies with the standards. ... (25) An accreditation system for tissue establishments and a system for notification of adverse events and reactions linked to the procurement, testing, processing, preservation, storage and distribution of human tissues and cells should be established in the Member States. ... (28) An adequate system to ensure the traceability of human tissues and cells should be established. This would also make it possible to verify compliance with quality and safety standards. Traceability should be enforced through accurate substance, donor, recipient, tissue establishment and laboratory identification procedures as well as record maintenance and an appropriate labeling system. ... Article 5 - Supervision of human tissue and cell procurement 1. Member States shall ensure that tissue and cell procurement and testing are carried out by persons with appropriate training and experience and that they take place in conditions accredited, designated, authorised or licensed for that purpose by the competent authority or authorities. ... Article 6 - Accreditation, designation, authorisation or licensing of tissue establishments and tissue and cell preparation processes 1. Member States shall ensure that all tissue establishments where activities of testing, processing, preservation, storage or distribution of human tissues and cells intended for human applications are undertaken have been accredited, designated, authorised or licensed by a competent authority for the purpose of those activities. ... 4. The competent authority or authorities may suspend or revoke the accreditation, designation, authorisation or licensing of a tissue establishment or of a tissue or cell preparation process if inspections or control measures demonstrate that such an establishment or process does not comply with the requirements of this Directive. ... Article 8 - Traceability 1. Member States shall ensure that all tissues and cells procured, processed, stored or distributed on their territory can be traced from the donor to the recipient and vice versa. This traceability shall also apply to all relevant data relating to products and materials coming into contact with these tissues and cells. 2. Member States shall ensure the implementation of a donor identification system which assigns a unique code to each donation and to each of the products associated with it. 3. All tissues and cells must be identified with a label that contains the information or references allowing a link to the information referred to in Article 28(f) and (h). 4. Tissue establishments shall keep the data necessary to ensure traceability at all stages. ... Article 10 - Register of tissue establishments and reporting obligations 1. Tissue establishments shall keep a record of their activities, including the types and quantities of tissues and/or cells procured, tested, preserved, processed, stored and distributed, or otherwise disposed of, and on the origin and destination of the tissues and cells intended for human applications, in accordance with the requirements referred to in Article 28(f). ... 2. The competent authority or authorities shall establish and maintain a publicly accessible register of tissue establishments specifying the activities for which they have been accredited, designated, authorised or licensed. ... CHAPTER III DONOR SELECTION AND EVALUATION Article 12 - Principles governing tissue and cell donation 1. Member States shall endeavour to ensure voluntary and unpaid donations of tissues and cells. Donors may receive compensation, which is strictly limited to making good the expenses and inconveniences related to the donation. In that case, Member States define the conditions under which compensation may be granted. ... Article 13 - Consent 1. The procurement of human tissues or cells shall be authorised only after all mandatory consent or authorisation requirements in force in the Member State concerned have been met. ... Article 15 - Selection, evaluation and procurement 1. The activities related to tissue procurement shall be carried out in such a way as to ensure that donor evaluation and selection is carried out in accordance with the requirements referred to in Article 28(d) and (e) and that the tissues and cells are procured, packaged and transported in accordance with the requirements referred to in Article 28(f). ... CHAPTER IV PROVISIONS ON THE QUALITY AND SAFETY OF TISSUES AND CELLS Article 16 - Quality management 1. Member States shall take all necessary measures to ensure that each tissue establishment puts in place and updates a quality system based on the principles of good practice. ... 3. Tissue establishments shall take all necessary measures to ensure that the quality system includes at least the following documentation: - standard operating procedures, - guidelines, - training and reference manuals, - reporting forms, - donor records, - information on the final destination of tissues or cells. 4. Tissue establishments shall take all necessary measures to ensure that this documentation is available for inspection by the competent authority or authorities. 5. Tissue establishments shall keep the data necessary to ensure traceability in accordance with Article 8. Article 19 - Tissue and cell reception 1. Tissue establishments shall ensure that all donations of human tissues and cells are subjected to tests in accordance with the requirements referred to Article 28(e) and that the selection and acceptance of tissues and cells comply with the requirements referred to in Article 28(f). ... 3. Tissue establishments shall verify and record the fact that the packaging of human tissue and cells received complies with the requirements referred to in Article 28(f). All tissues and cells that do not comply with those provisions shall be discarded. ... 5. Tissue establishments shall ensure that human tissues and cells are correctly identified at all times. Each delivery or batch of tissues or cells shall be assigned an identifying code, in accordance with Article 8. 6. Tissue and cells shall be held in quarantine until such time as the requirements relating to donor testing and information have been met in accordance with Article 15. Article 21 - Tissue and cell storage conditions 1. Tissue establishments shall ensure that all procedures associated with the storage of tissues and cells are documented in the standard operating procedures and that the storage conditions comply with the requirements referred to in Article 28(h). 2. Tissue establishments shall ensure that all storage processes are carried out under controlled conditions. 3. Tissue establishments shall establish and apply procedures for the control of packaging and storage areas, in order to prevent any situation arising that might adversely affect the functioning or integrity of tissues and cells. ... 5. Member States shall ensure that tissue establishments have agreements and procedures in place to ensure that, in the event of termination of activities for whatever reason, stored tissues and cells shall be transferred to other tissue establishment or establishments accredited, designated, authorised or licensed in accordance with Article 6, without prejudice to Member States ’ legislation concerning the disposal of donated tissues or cells, according to the consent pertaining to them.” 44. The relevant provisions of the Charter of Fundamental Rights of the European Union (2007/C 303 /01 ) are worded as follows: Article 1 – Human dignity “Human dignity is inviolable. It must be respected and protected.” Article 7 – Respect for private and family life “Everyone has the right to respect for his or her private and family life, home and communications.” 45. In a judgment of 18 October 2011 (C-34/10 Oliver Brüstle v. Greenpeace e.V .) the Court of Justice of the European Union (“the CJEU”) clarified the legal definition of the “human embryo”: “ any human ovum after fertilisation, any non-fertilised human ovum into which the cell nucleus from a mature human cell has been transplanted, and any non-fertilised human ovum whose division and further development have been stimulated by parthenogenesis”. The CJEU further ruled that Article 6(2)(c) of Directive 98/44 excluded an invention from patentability where the technical teaching which is the subject-matter of the patent application would require the prior destruction of the human embryo. The Advocate General Yves Bot recalled in his opinion delivered on 10 March 2011 on that matter that “Directive 98/44 prohibits the patentability of the human body, at the various stages of its formation and development, including germ cells” and asserted that “human dignity is a principle which must be applied not only to an existing human person, to a child who has been born, but also to the human body from the first stage in its development, i.e. from fertilisation” (§ 96). V. OTHER INTERNATIONAL INSTRUMENTS 46. The relevant parts of the Universal Declaration on Bioethics and Human Rights adopted by UNESCO ’ s General Conference on 19 October 2005 provide as follows: “The General Conference, ... Recognizing that, based on the freedom of science and research, scientific and technological developments have been, and can be, of great benefit to humankind in increasing, inter alia, life expectancy and improving the quality of life, and emphasizing that such developments should always seek to promote the welfare of individuals, families, groups or communities and humankind as a whole in the recognition of the dignity of the human person and universal respect for, and observance of, human rights and fundamental freedoms, ... Also recognizing that decisions regarding ethical issues in medicine, life sciences and associated technologies may have an impact on individuals, families, groups or communities and humankind as a whole, ... Proclaims the principles that follow and adopts the present Declaration. ... Principles Within the scope of this Declaration, in decisions or practices taken or carried out by those to whom it is addressed, the following principles are to be respected. Article 3 – Human dignity and human rights 1. Human dignity, human rights and fundamental freedoms are to be fully respected. 2. The interests and welfare of the individual should have priority over the sole interest of science or society. ...” | The applicants, a married couple, alleged that they had not been able to recover embryos that had been seized by the prosecuting authorities in 2009 and that they had been prevented from having another child. The couple had won court orders in their favour to retrieve the embryos, but they had not been able to fulfil them. |
764 | Right to life and right to respect for private life | THE CIRCUMSTANCES OF THE CASE 9. The applicant was born in 1931 and died on 10 November 2011. 10. For many years, the applicant had expressed the wish to end her life. She explained that she was becoming increasingly frail as time passed and was unwilling to continue suffering the decline of her physical and mental faculties. She decided that she wished to end her life by taking a lethal dose of sodium pentobarbital. She contacted an assisted- suicide association – EXIT – for support, which replied that it would be difficult to find a medical practitioner who would be prepared to provide her with a medical prescription for the lethal drug. 11. On 20 October 2008 a psychiatrist, Dr T., submitted an expert opinion in which he observed that there was no doubt that the applicant was able to form her own judgment. From a psychiatric medical point of view, Dr T. did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital. However, he refrained from issuing the prescription himself on the ground that he did not want to confuse the roles of medical expert and treating physician. 12. By letters of 5 November and 1 December 2008 and 4 May 2009, the applicant ’ s representative submitted on her behalf a request to be given a prescription for sodium pentobarbital to three further medical practitioners, who all declined to issue the requested prescription. 13. On 16 December 2008 the applicant submitted a request to the Health Board of the Canton of Zurich to be provided with 15 grams of sodium pentobarbital in order for her to commit suicide. On 29 April 2009 the Health Board rejected the applicant ’ s request. 14. On 29 May 2009 the applicant lodged an appeal with the Administrative Court of the Canton of Zurich. On 22 October 2009 the Administrative Court dismissed the appeal. It considered, in particular, that the prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with Article 8 of the Convention. The requirement to obtain a medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified. It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned. The Administrative Court observed that Dr T., in his expert opinion, had not considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near. The wish to die taken on its own, even if it was well considered, was not sufficient to justify the issuing of a medical prescription. Accordingly, the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case. There was therefore a need for further medical examination. Under these circumstances, the Administrative Court considered that there was no sufficient reason to dispense the applicant from the necessity of undergoing a thorough medical examination and of obtaining a medical prescription. 15. On 12 April 2010 the Federal Supreme Court dismissed an appeal lodged by the applicant. It observed, inter alia, that the applicant undisputedly did not fulfil the prerequisites laid down in the medical -ethical guidelines on the care of patients at the end of life adopted by the Swiss Academy of Medical Sciences, as she was not suffering from a terminal illness, but had expressed a wish to die because of her advanced age and increasing frailty. Even though the Federal Supreme Court had previously considered that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable, persistent and serious psychological illness did not necessarily amount to a violation of a doctor ’ s professional duties, this exception had to be handled with the “utmost restraint” and did not enjoin the medical profession or the State to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life. The Federal Supreme Court further noted that the issuing of the requested substance required a thorough medical examination and, with respect to the persistence of the wish to die, long-term medical supervision by a specialist practitioner who was prepared to issue the necessary prescription. This requirement could not be circumvented by the applicant ’ s request for an exemption from the necessity of obtaining a medical prescription. 16. On 10 November 2010 counsel for the applicant lodged an application with the Court. 17. On 24 October 2011 the applicant obtained a medical prescription for 15 grams of sodium pentobarbital signed by a medical practitioner, Dr U. On 10 November 2011 she ended her life by imbibing the prescribed substance. According to a police report dated 14 November 2011, no relatives of the deceased could be identified. The report concluded that the applicant had committed suicide with the assistance of EXIT and that no third person was found to be criminally liable in this context. 18. The Court was not made aware of the applicant ’ s death until 7 January 2014 (see paragraph 19 below). | The case concerned the complaint of an elderly woman – who had wished to end her life but had not been suffering from a clinical illness – that she had been unable to obtain the Swiss authorities’ permission to be provided with a lethal dose of a drug in order to commit suicide. The applicant complained that by denying her the right to decide by what means and at what point her life would end the Swiss authorities had breached Article 8 (right to respect for private and family life) of the Convention. |
783 | Medical negligence and liability of health professionals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, Dorina and Viorel-Aurel [2] Ioniță, were born in 1976 and 197 2 respectively and live in Brăila. A. Death of the applicants ’ son 6. On 7 November 2005 the applicants ’ son, aged four years and nine months at that time, underwent surgery for the removal of polyps, which was performed by Dr C.B. in the State-run Brăila Emergency Hospital. 7. Dr C.B. decided to perform the operation under general anaesthetic with tracheal intubation. The general anaesthesia was performed by Dr P.A, assisted by P.V. I., a staff nurse. 8. After surgery the child was immediately transferred to the intensive care unit. Ten minutes after his transfer P.V. I. informed Dr P.A that the child was cyanotic and had no pulse. 9. The child suffered a haemorrhage, causing blood to flood his lungs. A team of doctors tried to resuscitate him and clear his respiratory channels, but without any success. The child was declared dead two hours after the operation. 10. A criminal investigation into the cause of death was opened by the Brăila police on the same day. 11. Dr C.B. and Dr P.A. were questioned and gave written statements. 12. An autopsy report issued by the Brăila Forensic Service ( Serviciul de medicină legală Brăila ) on 8 November 2005 said that the applicants ’ son had died of acute respiratory failure as a result of the blood that had blocked his airways and flooded his lungs. It also noted that the child had suffered from several congenital deficiencies which had probably played a role in the post ‑ operative complications : myocardia and hepatic dystrophy, and interatrial septum aneurisms. 13. The report was sent for the approval of the commission for confirmation and supervision of the Iaşi Forensic Institute ( Comisia de avizare și control din cadrul IMF Iaşi ). On 5 May 2006 the commission confirmed that the child ’ s death had occurred after surgery and had been caused by the blood that had blocked his airways and lungs. It held that there had been a causal link between the post- operative treatment and the child ’ s death. It noted the deflation of the balloon of the catheter ( balonaşul sondei de întubaţie ), applied after post-operatively to prevent the ingress of blood into the lungs, as a possible cause of the presence of blood there and in his airways. 14. On 12 October 2006 the superior commission of the Mina Minovici Forensic Institute examined all the documents and approved the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute. B. Disciplinary proceedings 15. On 8 November 2005 the child ’ s father lodged a disciplinary complaint against Dr C.B. and Dr P.A. 16. The disciplinary committee of the Brăila College of Doctors opened an investigation into the patient ’ s death, collecting documents from the patient ’ s medical file and taking statements from Dr C.B. and Dr P.A., as well as from the doctors involved in the resuscitation procedure post ‑ operation. It gave its decision on 9 July 2007 by which it concluded that the child ’ s death could be included among cases of sudden death (with a frequency of 2-4 % owing to the child ’ s pre- existing medical conditions : myocardia and hepatic dystrophy, and inter-atrial septum aneurisms ). Although the committee concluded that there had been no direct link between the child ’ s death and the doctors ’ medical conduct, it reprimanded both doctors for their failure to perform the necessary pre-surgical medical tests and to seek the applicants ’ informed consent before surgery. 17. The applicants objected to the committee ’ s conclusions and their appeal was examined by the superior disciplinary committee of the National College of Doctors. 18. An expert medical opinion was submitted to the committee and was used by it in reaching its final conclusions. The expert noted, among other things, that the child ’ s preparation for surgery had not been appropriate as his examination before anaesthesia had been “ very superficial”; in this respect the committee noted the lack of a radioscopy of the lungs, of an EKG and an exploration of the necessary time for blood coagulation. In the expert ’ s view, the doctors had ignored the child ’ s severe congenital deficiencies as they had considered that surgery for the removal of polyps had been a “minor intervention” and therefore no special precautions had been necessary. 19. By a decision of 6 June 2008 the superior disciplinary committee of the National College of Doctors quashed the decision of 9 July 2007 and fined each doctor 1, 000 Romanian lei ( the equivalent of approximately 220 euros (EUR) ). It found that the child ’ s pre-surgical tests had been insufficient for avoiding post- operative complications. Therefore, it held that Dr C.B. and Dr P.A. had infringed Article 53 of the Medical Deontological Code, pursuant to which a doctor should perform diagnoses with maximum diligence in order to determine the adequate treatment and avoid predictable complications that might occur for a patient under his or her care. 20. The committee further stated that the presence of blood in the child ’ s airways could not be explained on the basis of the documents and statements in the file. It noted that all the doctors and the nurses who had given evidence stated that the balloon of the intubation catheter had been leak ‑ proof ( etanche ); however, the fact that the cause of death had been the presence of blood in the child ’ s lungs could only lead to the conclusion that such statements had been inaccurate. 21. Relying on Articles 58 and 60 of the Deontological Code and Article 6 of Law no. 46/2003, the committee also noted that the parents had not given their informed consent. C. Criminal proceedings against the doctors 1. Criminal investigation 22. On 7 November 2005 the applicants lodged a criminal complaint alleging that the flawed surgical and post-surgical treatment received by their son had resulted in his death. They asked that those responsible be identified and held accountable for their son ’ s death. They joined the criminal proceedings as civil parties. 23. Following a request of the Brăila Police Inspectorate, on 19 July 2006 Brăila Emergency Hospital stated that the medical staff members in charge of monitoring the child were Dr P.A. during the intervention and the child ’ s transfer to the intensive care unit and P. V. I. while in the intensive care unit. 24. On 5 January 2007 the prosecutor ’ s office of the Brăila District Court decided to institute criminal proceedings against Dr P.A. 25. P.V. I. was interviewed as a witness immediately after the child ’ s death, during the preliminary criminal investigation. During the criminal proceedings against Dr P.A., in spite of the fact that she had been repeatedly summoned, the investigating authorities were not able to question her as she had not been found. She had left her job at the Brăila Emergency Hospital in January 2006. 26. The prosecuting authorities interviewed several doctors and nurses from the hospital ’ s medical staff who had been involved in the applicants ’ son ’ s post- operative care. 27. Dr P.A. lodged a request with the investigating body for a new forensic medical report. He pointed out that there were major contradictions between the autopsy report and the opinion issued by the commission for confirmation and supervision of the Iaşi Forensic Institute. 28. On 4 April 2007 the Brăila Police Inspectorate asked the Iaşi Forensic Institute to carry out a forensic expert report that would identify the cause and circumstances of the child ’ s death. The Iaşi Forensic Institute replied that a new forensic report could not be produced as the evidence examined had been sent by Brăila Forensic Service to the Mina Minovici National Forensic Institute. 29. On 20 February 2008 Dr P.A. submitted an extrajudicial expert report. It stated that the cause of death had not been the presence of blood in the child ’ s lungs owing to a lack of adequate post- operative monitoring, but the post- operative reaction of a child with pre- existing medical conditions (cardiac congenital malformation, hepatic dystrophy, renal stasis, mesenteric adenopathy and hemorrhagic enterocolitis) mentioned in the medical records kept by the child ’ s paediatrician. The report noted a generalised inflammatory reaction associated with diffused haemorrhages in his digestive tract, lungs, heart and spleen. 30. The applicants gave evidence to the investigating authorities on 23 January 2008. They contended that they had not been properly informed about the risks of surgery and of the general anaesthetic and consequently they had not given their consent for such interventions. 31. On 30 June 2008 the Brăila Police Inspectorate ordered that a new forensic report be produced by the Mina Minovici National Forensic Institute. The applicants, Dr P.A. and the investigating authorities submitted several questions for the forensic experts. They asked, among other things, whether the pre-existent medical condition of the child had influenced his unfavourable post-surgical evolution and whether administration of a general anaesthetic had been the right option, given the age and the diagnosis of the child. The child ’ s father also asked the Forensic Institute whether the post- operative monitoring of the child had been adequate. 32. However, on 28 July 2008 the Forensic Institute replied that it could not deliver such a report because under the relevant domestic legislation a new forensic expert report could not be ordered unless there were new medical and factual elements. Accordingly, the Forensic Institute stated that it maintained its previous opinion. 33. Copies of the documents from the disciplinary file were added to the criminal file. 34. On 30 September 2008 the prosecutor ’ s office of the Brăila County Court decided to discontinue the criminal proceedings against Dr P.A., finding, in the light of evidence gathered in the case, that there had been no element of criminal negligence in his conduct. That decision was upheld on 10 November 2008 by the chief prosecutor of the same prosecutor ’ s office. 2. Court proceedings 35. A complaint by the applicants against the prosecutors ’ decisions was allowed by the Brăila District Court on 25 February 2009. The prosecutors ’ decisions were quashed and the District Court kept the file for fresh consideration. It considered that although a new forensic report had not been produced, the decision of the superior committee of the National College of Doctors provided enough information concerning the cause of death, which had been the presence of blood in the child ’ s airways owing to the balloon of the tracheal catheter not being tight enough. It considered that it should be established whether the post- operative monitoring of the child by Dr P.A. had been appropriate and more precisely whether Dr P.A. should have noticed the non-functioning catheter. 36. Dr C.B. and Dr P.A. gave statements before the District Court on 18 January 2010. Moreover, members of the medical staff that had attempted resuscitation gave evidence (on 1 March, 20 April and 8 June 2008). Some of them maintained that the blood in the lungs could be explained by the resuscitation attempts and that the balloon of the catheter had been kept tight all the time after surgery. 37. P.V.I. did not give evidence before the court as, although summoned, she did not attend the hearings. According to several reports issued by bailiffs seeking to bring her before the court, she had left the country for Italy. Based on the material in the case file it does not appear that the court took special measures to identify her address there. 38. The child ’ s father gave evidence before the Brăila District Court on 18 January 2010. He reiterated his claims for pecuniary and non ‑ pecuniary damages. He again contended that the doctors had not informed his family about the risks of surgery and in particular of the general anaesthetic and accordingly they had not given their informed consent. 39. On 1 October 2010, after several hearings, the Brăila District Court acquitted Dr P.A. and dismissed the applicants ’ civil claim as unfounded. 40. The District Court took into account the extrajudicial forensic report submitted by Dr P.A. It noted that the conclusions of the extrajudicial report were in total contradiction to the conclusions of the medical report of 8 November 2005 and the conclusions of the commission for confirmation and supervision of the Iaşi Forensic Institute. 41. This judgment was upheld by a decision of the Brăila County Court delivered on 21 December 2010. 42. The County Court did not take into account the conclusions of the extrajudicial forensic report as in its opinion it represented only extrajudicial evidence which could not set aside the conclusions of competent forensic institutes. 43. The County Court concluded that the death of the child had been caused by the presence of blood in his airways and lungs. However, based on the evidence in the file, it was not possible to explain when the blood had entered the child ’ s airways because of the deflation of the catheter ’ s balloon. Moreover, the post- operative complications occurred ten minutes after the child had been transferred to the intensive care unit, while under the supervision of P.V.I. The County Court held therefore that Dr P.A. could not be held responsible for the deflation of the catheter ’ s balloon after surgery. 44. The applicants lodged an appeal on points of law against that decision. They requested that the court extend the criminal investigation to P.V.I., who had had the child under her supervision in the intensive care unit. 45. By a decision of 15 April 2011 the Galaţi Court of Appeal allowed the applicant ’ s appeal and quashed the decisions of the lower courts. Noting that the lower courts had not examined the allegation made by the child ’ s parents that they had not given their consent for surgery and the general anaesthesia, the appeal court sent the file back to the Brăila District Court. 46. On 22 December 2011 the Brăila District Court acquitted Dr P.A. It held that no causal link existed between the death of the child and the presumed omission of the medical authorities to obtain the applicants ’ informed consent for the administration of a general anaesthetic. 47. It further held that it could not establish beyond any reasonable doubt that Dr P.A. had been negligent in ensuring the tightness of the catheter ’ s balloon after surgery. Consequently, the court dismissed the applicants ’ civil claim as unfounded. 48. The court also dismissed the applicants ’ request to extend the criminal investigation to P.V.I. on the grounds that, under Article 337 § 1 of the CCP, only the prosecutor could ask for the extension of the investigation to other persons while the proceedings were pending before the courts. 49. This judgment was upheld by a final decision delivered by the Galaţi Court of Appeal on 22 May 2012. D. Separate civil proceedings 50. On 28 October 2008 the applicants instituted separate civil proceedings against the Brăila Emergency Hospital and doctors C.B. and P.A. in the Brăila District Court for the pecuniary and non ‑ pecuniary damages they had sustained as a result of their son ’ s death. 51. On 23 April 2009, referring to Article 19 of the CCP (see paragraph 5 7 below), the court stayed the civil proceedings pending a final decision in the criminal proceedings. It noted that the outcome of the civil proceedings would depend to a large extent on the verdict in the criminal proceedings. 52. On 29 January 2013 the Brăila District Court lifted the stay of the civil proceedings. However, the applicants gave up their separate civil claim on 6 March 2013. | This case concerned the death of the applicants’ four-year-old son following an operation. The applicants complained that the authorities had failed to effectively investigate the incident, despite their repeated claims that it had been caused by the negligence of medical staff. |
1,060 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant is a limited company specialising in petroleum products. Its predecessor was called Greek petroleum, oil and lubricants – Industrial and commercial limited company (EKO AVEE). 9. On 8 May 1987 the applicant company paid the tax authorities 137, 020, 491 drachmas (GDR ) ( approximately 402, 338 euros (EUR)) as an advance payment on the income tax due for the tax year 1987. On 11 May 1987 the tax authorities granted the applicant company a 10 % reduction on the amount paid, as a bonus for paying the full advance payment due without requesting to pay by instalments. Accordingly, the advance tax payment ultimately paid by the applicant company amounted to GDR 123,387, 306 ( approximately EUR 362, 105). 10. On 10 May 1988 the applicant company filed its tax return with the tax authorities for the year 1987. The return showed that the company had sustained a substantial loss of profit, which meant that the authorities had to refund the applicant company the amount paid as an advance payment since it had been unduly paid. 11. On 24 June 1988 and 9 December 1991 the applicant company sought a refund of GDR 123, 387, 306 from the Athens tax authorities dealing with limited companies, which was the amount levied in income tax for the year 1987. On an unspecified date the State refused to comply with its request. 12. On 27 December 1991 the applicant company brought proceedings against the State in the Athens Administrative Court. It requested a refund, under section 38 ( 2 ) of Law no. 1473/1984, of the sum of GDR 123, 38 7, 306 that had been unduly paid in income tax. It also claimed default interest on that amount accruing from 10 May 1988, when the State had been informed that the tax had been unduly paid, up until payment. The applicant company based its claims on Article 345 of the Civil Code, which provides for the payment of default interest in the event of a pecuniary debt. 13. Law no. 2120/1993 was published on 4 March 1993. Section 3 of that Law provides that the State will pay interest in the event of a refund of tax unduly paid. With regard to cases pending at the time of publication of the Law, it provides that interest shall start to accrue on the first day of the month following a period of six months after its publication. 14. On 12 November 1993, prior to the hearing in the case listed for 23 September 1994, the State refunded the applicant company GDR 123,387, 306, which corresponded to the tax it had paid. In its submissions before the Administrative Court, the applicant company limited its claims to statutory interest for the delay in paying the refund. 15. On 26 January 1995 the Administrative Court declared the applicant company ’ s application inadmissible (decision no. 512/1995). On 3 November 1995 the applicant company appealed. 16. On 6 June 1996 the Athens Administrative Court of Appeal declared the applicant company ’ s appeal admissible, but held that it was ill-founded on the ground that at the material time the Code for the Collection of Public Revenues did not provide that the State was liable to pay interest in the event of a delay in refunding tax unduly paid. Moreover, the court held that Article 345 of the Civil Code did not apply to the present case, since the provision governed only civil-law relations (decision no. 4042/1996). 17. On 27 June 1997 the applicant company lodged an appeal on points of law. 18. On 8 November 2000, by judgment no. 3547/2000, the Supreme Administrative Court dismissed the appeal. It found that the State was not bound to pay late-payment interest in the event of tax unduly paid. Such an obligation did not derive from the relevant provisions of the Civil Code relating to late-payment interest because these did not apply to a debt arising from a public -law relationship. Furthermore, the Supreme Administrative Court pointed out that no such obligation had been incumbent on the State prior to Law no. 2120/1993, published on 4 March 1993 (see paragraphs 21 and 22 below ). That judgment was finalised and certified by the court on 26 October 2001. | In June 1988 the applicant, a limited company specialising in petroleum products, asked the Inland Revenue Service to repay 123,387,306 drachmas (approximately 362,105 euros) wrongly paid in income tax. When the tax authorities refused, the applicant brought proceedings in Athens Administrative Court to obtain that sum plus interest. In November 1993, while the proceedings were pending, the State paid the applicant the equivalent of 362,105 euros. In its observations to the Administrative Court the applicant limited its claim to the statutory interest for being kept out of its money. The Administrative Court dismissed that claim as inadmissible and the Court of Appeal ruled that a subsequent appeal by the company was ill-founded because at the material time the Tax Code made no provision for the payment of interest by the State in such a situation. In November 2000 the Supreme Administrative Court dismissed an appeal on points of law. The applicant complained of the tax authorities’ refusal to pay it interest to compensate it for the delay in payment of a tax credit to which it was entitled. |
115 | Domestic violence / abuse | I. THE CIRCUMSTANCES OF THE CASE 4. The facts of the case, as submitted by the applicants, may be summarised as follows. 5. The applicants are four Slovak nationals who live in Košice. The first applicant, Mrs E. S., was born in 1964. She is the mother of the second applicant, Ms Er. S., the third applicant, Ms Ja. S., and the fourth applicant, Mr Já. S., who were born in 1986, 1989 and 1988 respectively. 6. On 7 March 2001 the applicants left the apartment in which they lived with Mr S., who was the first applicant ’ s husband and the father of the second, third and fourth applicants. The first applicant moved the second, third and fourth applicants away from the apartment to protect them from physical and sexual abuse by Mr S. 7. On 11 April 2001 the first applicant filed for divorce against her husband in the Košice I District Court. On 25 June 2001 the District Court placed the second, third and fourth applicants in her care pending the outcome of the divorce proceedings. On 19 March 2002 the District Court granted the petition for divorce. The divorce was finalised on 6 May 2002. The first applicant was granted custody of the second, third and fourth applicants on 18 November 2003. 8. On 21 May 2001 the first applicant filed a criminal complaint against her husband on the ground that he had ill-treated both her and the children and had sexually abused one of their daughters. 9. On the same day the first applicant requested that the Košice I District Court issue an interim measure ordering her husband to move out of the municipal apartment that they held under a joint tenancy. In making the request, the first applicant referred to her husband ’ s behaviour in respect of the children and submitted the opinion of an expert, which indicated that the second, third and fourth applicants had suffered from physical and psychological ill-treatment on account of their father ’ s behaviour and expressed the view that it was absolutely necessary to separate the four applicants from him. 10. Articles 74 and 76 of the Code of Civil Procedure permitted the courts to issue an interim measure requiring the parties to perform something, forbear from something or bear something. On 20 June 2001 the District Court dismissed the first applicant ’ s request as her husband had a tenancy right in respect of the apartment and the court considered that it lacked the power to restrict his right to use it. As a consequence, the applicants had to move away from their home, their family and their friends and the second and third applicants had to move to a new school. 11. The first applicant appealed to the Regional Court in Košice. She informed the court that the children had been placed in her custody and that criminal proceedings had been brought against their father. 12. On 31 August 2001 the Regional Court in Košice upheld the first-instance decision not to issue an interim measure. It held, with reference to the relevant law and practice, that the first applicant would be entitled to bring proceedings with a view to terminating the joint tenancy of the apartment only after a final decision had been delivered in the divorce proceedings. Ordering an interim measure in the terms requested by the first applicant would impose a disproportionate burden on her husband. The Regional Court indicated, however, that an interim measure could have been issued if the first applicant had instead requested that her husband be ordered to abstain from inappropriate behaviour towards her and the children and to abstain from threatening them. 13. The applicants complained to the Constitutional Court. On 18 June 2003, shortly before the Constitutional Court issued its judgment, the first applicant ’ s former husband was convicted by the Regional Court in Košice of ill-treatment, violence and sexual abuse. He was sentenced to four years ’ imprisonment. An expert opinion submitted in the context of the criminal proceedings indicated that contact with their father had an adverse effect on the second, third and fourth applicants ’ health and development. 14. In a judgment dated 9 July 2003, the Constitutional Court found that the Košice I District Court and the Regional Court in Košice, by failing to take appropriate action with a view to protecting the second, third and fourth applicants from ill-treatment by their father, had violated their rights under Articles 16 § 2 (prohibition of torture, inhuman or degrading treatment or punishment) and 21 §§ 2 and 3 (inviolability of home) of the Constitution as well as their rights under Article 19 of the Convention on the Rights of the Child, which obliges the Contracting Parties to take appropriate measures to protect children from all forms of physical or mental violence, including sexual abuse. 15. The documentary evidence in the case was sufficient to conclude that the applicants had been subjected to physical violence and abuse by the husband of the first applicant. The decision stated that the second, third and fourth applicants had not been parties to the proceedings concerning the interim measure. In view of the facts of the case, the ordinary courts should, nevertheless, have issued an interim measure of their own initiative with a view to protecting the children from abuse and ill-treatment by their father. Such an obligation resulted from the relevant provision of the Code of Civil Procedure as well as from the Convention on the Rights of the Child. 16. The Constitutional Court held that the finding of a violation provided in itself appropriate just satisfaction to the three applicants concerned. It therefore dismissed their request for compensation for non-pecuniary damage. 17. As regards the first applicant, the Regional Court ’ s decision stated that an interim measure could have been granted had she phrased her request in a different manner. In reaching that conclusion the Regional Court had not, in the Constitutional Court ’ s view, acted contrary to the first applicant ’ s constitutional rights. 18. In January 2003 the relevant legislation had been amended specifically to provide that the domestic courts could order a party “not to enter temporarily a house or an apartment occupied by a close person or person in his/her care or education in relation to whom there are reasons for he/she being suspected of violence.” One week before the Constitutional Court issued its judgment, the first applicant lodged with the Košice I District Court a motion for an interim measure ordering, inter alia, her former husband not to enter the common apartment. On 7 July 2003 Košice I District Court issued an interim order in those terms, starting with the date of the delivery of the decision and expiring fifteen days after the order became enforceable. Moreover, the court ordered the first applicant to file an action for exclusion from the apartment within thirty days from the date of delivery of the decision. The decision became enforceable on 29 October 2003. 19. On 10 July 2003 the first applicant filed an action with the Košice I District Court to exclude her former husband from using the apartment. On 18 May 2004 she filed with the Košice I District Court an action for cancellation of the right to joint lease of the apartment. On 10 December 2004 the Košice I District Court cancelled the right to a joint lease of the apartment and the first applicant became the exclusive tenant thereof. Furthermore, the court ordered the applicant ’ s former husband to move from the apartment within fifteen days from the date of final judgment. | In 2001 the applicant left her husband and lodged a criminal complaint against him for ill-treating her and her children (born in 1986, 1988 and 1989) and sexually abusing one of their daughters. He was convicted of violence and sexual abuse two years later. Her request for her husband to be ordered to leave their home was dismissed, however; the court finding that it did not have the power to restrict her husband’s access to the property (she could only end the tenancy when divorced). The applicant and her children were therefore forced to move away from their friends and family and two of the children had to change schools. |
237 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1960 and lives in Murmansk. At the material time the applicant was an elected member of the Murmansk regional legislature ( the “ Murmansk Duma”). A. The applicant ’ s apprehension and subsequent events 5. At about 1.30 p.m. on 27 April 2003, some police officers stopped the applicant on suspicion of drunk driving and took him to the Severomorsk police station. At the station the applicant became agitated, verbally abusing police officers, grabbing them by the clothing and hitting them. He was then handcuffed. 6. As the applicant initially refused to give his name, police officers searched his clothing and found an identity card showing him to be a member of the Murmansk Duma. The applicant confirmed that he was a member of the regional legislature. His handcuffs were removed. The chief of the police station, who was away from the station at the time, phoned the duty officer and instructed him to invite the applicant to take an alcohol test and, should he refuse, to prepare a report on his refusal and arrange for his release. The applicant refused to make any statements and continued to behave in an unruly manner, pulling at the officers ’ clothing and throwing his shoes at them. The police officers repeatedly asked the applicant to leave the station but he refused to go unless the mayor and the chairman of the Murmansk Duma came to see him. 7. At 2.30 p.m. the police chief arrived and invited everyone into his office. The applicant verbally abused him and the other police officers, claiming that his arrest had been politically motivated. He again refused to take an alcohol test. 8. In connection with the applicant ’ s “inadequate behaviour”, the police chief decided to record the applicant ’ s actions on video. To that end, he got in touch with a cameraman from the Murman State television and radio broadcasting company ( ГТРК « Мурман » ) and asked him to come to the station with his camera. A few minutes later the cameraman arrived and started filming in the police chief ’ s office. The applicant repeated on camera the same allegations he had made earlier against the police and refused to take an alcohol test. The police chief again told him that he was free to leave but the applicant instead sat at the duty officer ’ s desk, taking out a drawer and throwing its contents onto the floor. Some of the events were captured on camera by the cameraman, who remained at the police station until 4.30 p.m. 9. At 5.30 p.m. a presenter and a cameraman from Northern Fleet television ( телевидение Северного Флота ) arrived at the station. Upon receiving an official authorisation from the police chief, they started filming the applicant, who was still sitting at the desk dishevelled, without shoes on and with his feet on the table, making calls on his mobile phone. The television crew interviewed the police chief and asked the applicant to make a statement but he declined. They stayed at the station for approximately forty minutes. 10. The applicant ’ s assistant then arrived and called an ambulance for him. However, when it turned up, the applicant refused to get in it with the doctor to go to the town hospital. The Murmansk regional prosecutor, who arrived at about 7.30 p.m., formally informed the applicant that he was free to go and that he could leave immediately. After the applicant refused to leave and ignored further warnings against him if he did not do so, he was escorted out by two police officers. 11. The following day, Murman included in its news programme extracts from the footage filmed at the police station. The same extracts were broadcast by the Blits, TV-21 and North-West Broadcasting television companies. 12. Following a medical examination on 30 April 2003, the applicant was diagnosed as having sustained minor bodily injuries, including bruises and scratches on his face and body. He requested the Murmansk regional prosecutor to institute criminal proceedings against the police officers for ill-treatment and abuse of power. Having investigated the above events, on 7 May 2003 the prosecutor rejected the applicant ’ s request. The decision was upheld on 24 May 2004 by the Severomorsk Town Court as well-founded. The applicant did not challenge that judgment before the Regional Court. 13. On 20 May 2003 the regional prosecutor appeared before the Murmansk Duma to deliver the results of the investigation into the applicant ’ s allegations of ill-treatment. He offered to show the footage filmed at the police station on 27 April 2003. Some members refused to watch the videotape but others agreed to it being shown. They watched the videotape in the private office of one member of parliament. B. Civil proceedings concerning the broadcasting of the footage 14. On an unspecified date the applicant lodged a civil claim against the Severomorsk police chief, the Murmansk regional prosecutor, the State-owned television company Murman and the Blitz, TV-21 and North-West Broadcasting companies, seeking to have the videotaping and subsequent broadcasts declared unlawful and claiming compensation in respect of non-pecuniary damage as a result of the interference with his private life. 15. On 11 November 2003 the Pervomayskiy District Court of Murmansk rejected the claim. The court found that the broadcasting of the footage could not be attributed to the police chief. The latter confirmed that he had invited the cameraman to the station after the applicant had introduced himself; however, he had not ordered the footage to be broadcast. He also confirmed that the applicant had not realised that he was being filmed as he had been under the influence of alcohol. The court decided that the filming was justified under section 11(15) of the Police Act, as the applicant had refused to produce his identity documents. The court also stated that the footage had not concerned the applicant ’ s private life but the offences he had committed. 16. The court further found that Murman had acted in compliance with section 38 of the Mass Media Act, which provided for the right of citizens to receive information about the activity of public officials. The court also referred to section 50 of the same Act in so far as it allowed the dissemination of that type of material under special circumstances; however, it found that the film had not been disseminated. During the proceedings the applicant withdrew his claim against North-West Broadcasting, and the court found that Blitz and TV-21 could not be held liable by virtue of section 57(6) of the Mass Media Act as they had simply reproduced the footage broadcast by Murman. 17. The court also found that the regional prosecutor had lawfully reported to the Murmansk Duma members, on 20 May 2003, about the findings of the inquiry into the applicant ’ s allegations of ill-treatment. In so doing, he did not breach any legal provision, so the plaintiff had no cause of action against him. 18. The applicant appealed against that judgment. He challenged, in particular, the court ’ s finding that the videotaping had been justified under section 11(15) of the Police Act. The defendants confirmed during the trial that they had obtained the applicant ’ s identity documents immediately after his arrest and that it would not have been necessary to film him for identification purposes. The applicant also stated that his right to respect for his private life had been violated as the footage had been broadcast without his consent. 19. On 24 March 2004 the Murmansk Regional Court upheld the judgment summarily. C. Administrative proceedings against the applicant 20. On 27 April 2003 police officers filed with Severomorsk Town Court the administrative offence reports, according to which the applicant had committed offences under Articles 12.26 (“Driver ’ s refusal to take an alcohol test”), 19.3 (“Persistent refusal to obey lawful police orders”) and 20.1 (“ Minor disorderly acts ”) of the Code of Administrative Offences. 21. On 14 May 2003 the Town Court found the applicant guilty of the above-mentioned offences and fined him 1,500 Russian roubles (RUB). With respect to the latter charge of minor disorderly acts, the Town Court gave the following description of the offence: “On 27 April 2003, at about 2 p.m. Mr Khmel, being in a public place – the premises of the Severomorsk police station – in the presence of police officers and other members of the public, uttered obscenities and disregarded repeated demands by the police officers to stop his unlawful behaviour, thereby committing minor disorderly acts ... His behaviour demonstrated an obvious disrespect for people in positions of authority in the performance of their duties, which has been confirmed by the police officers K., S., U., P., G. and M. ” The Town Court made findings of fact on the basis of the written statements by the police officers and other witnesses and the administrative offences reports of 27 April 2003. Its judgment did not mention any video footage. 22. On 27 May 2003 the Murmansk Regional Court upheld the judgment, rejecting an appeal by the applicant on procedural grounds. D. Criminal proceedings against the applicant 23. As the applicant was a member of the Murmansk Duma, in accordance with a special procedure set out in the Code of Criminal Procedure, on 16 July 2003 the Murmansk regional prosecutor requested the Murmansk Regional Court to determine whether there was any indication that the applicant had committed offences punishable under Article 318 § 1 (threatening violence against a public official) and Article 319 (insulting a public official) of the Criminal Code. 24. On 19 November 2003 the Regional Court concluded that the applicant ’ s behaviour had contained elements of the above -mentioned offences and allowed criminal proceedings against him to be instituted. 25. In the course of the proceedings the applicant was represented by a lawyer of his own choosing, S. During the five days of the trial S. was ill and the court replaced him with lawyers A. and L. without having obtained the applicant ’ s consent. 26. On 8 August 2005 the Severomorsk Town Court convicted the applicant of threatening violence against a public official ( Article 318 § 1) and insulting a public official (Article 319). The evidence before the court included the statements by the victims and the witnesses, the footage recorded at the police station on 27 April 2003 and administrative offences reports. 27. The Town Court fined the applicant RUB 7,500 under Article 319 but exempted him from criminal liability under that provision as the charges had become time-barred. Under Article 318 § 1 the applicant was fined RUB 30,000. The relevant parts of the judgment read as follows: “ On 27 April 2003 ... while at the police station, Mr Khmel ... uttered many obscenities to [the police officers] P. and S. ... repeatedly asked to leave the police station, Mr Khmel responded with obscene insults to the duty officer M. ... Mr Khmel kicked the officer T. twice in the stomach, causing him visible pain, then pulled at his epaulette and tore it off. This action was accompanied by obscene insults towards T., undermining his honour and dignity as a person in a position of authority ... Talking to the police chief, K., in his office in the presence of his subordinate officers, Mr Khmel, ... insulted and humiliated him, uttering obscenities which caused damage to his dignity and honour and undermined his authority ... When the road traffic officer G. again requested Mr Khmel to take an alcohol test, Mr Khmel uttered obscenities to him ... ” 28. On 29 September 2005 the Murmansk Regional Court upheld the judgment on appeal. | Taken to a police station on suspicion of drunk driving, the applicant – a member of a regional parliament – refused to give his name, behaved in an unruly manner and would not leave the building when asked to do so. Administrative proceedings were brought against him and he was found guilty of various offences, including refusing to take an alcohol test and committing minor disorderly acts. He was fined 1,500 Russian roubles (RUB). Later he was also found guilty in criminal proceedings of threatening and insulting a public official on the day he taken to the police station, and fined RUB 7,500. The administrative and criminal judgments against him were upheld on appeal. The applicant complained in particular that the bringing of both the administrative and criminal proceedings against him had amounted to double jeopardy. |
771 | Health data | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1975 and lives in the Cēsis District (Latvia). A. Background to the case 6. On 16 June 1997 the applicant gave birth in the Cēsis District Central Hospital (a municipal enterprise, hereinafter “ the Cēsis hospital ”). Caesarean section was used, with the applicant ’ s consent, because uterine rupture had occurred during labour. 7. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant ’ s consent. 8. On 4 February 200 5, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. B. Assessment of the quality of health care provided to the applicant 9. On 19 February 2004 the director of the Cēsis hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work ( hereinafter “the MADEKKI ” ), requesting it to “evaluate the treatment received by [the applicant] during childbirth in accordance with the legislation in force in 1997”. The MADEKKI initiated an administrative procedure on the following day. The administrative inquiry concerned the applicant ’ s health care and in particular the gynaecological and childbirth assistance she had been provided from 1996 to 2003. In the process of that inquiry the MADEKKI requested and received medical files from three different medical institutions, containing detailed information about the applicant ’ s health over that period. 10. In April 2004 M.Z., a MADEKKI staff member, telephoned the applicant and informed her of the on-going inquiry. M.Z. invited the applicant to comment on the case, which she declined to do, referring the MADEKKI to her legal representative, Ms Olsena, instead. During the conversation M.Z. allegedly admonished the applicant for wanting to sue the hospital for damages, and told her that she herself was to blame for her sterilisation. 11. On 7 May 2004 Ms Olsena asked the MADEKKI for information on the legal grounds for, and the factual circumstances of, the inquiry. 12. On 14 May 2004 the MADEKKI issued a report concerning the medical treatment given to the applicant during childbirth in 1997. The report contained medical details about the applicant of a particularly private and sensitive character. It concluded that no laws had been violated during the applicant ’ s antenatal care or during childbirth. A summary of the findings of the report was sent to the director of the Cēsis hospital on 21 May 2004. 13. On 18 May 2004 the MADEKKI answered Ms Olsena ’ s questions concerning the administrative inquiry, setting out its opinion on the legal basis for it and providing information on the steps that had been taken in the course of the inquiry. 14. The applicant ’ s representative lodged a claim with the Administrative District Court, alleging that the MADEKKI had initiated the inquiry unlawfully, since in essence its purpose had been to help the Cēsis hospital to gather evidence for the impending litigation, which was outside the MADEKKI ’ s remit. It was also alleged that the MADEKKI had acted unlawfully in requesting and receiving information about the applicant ’ s health, as it had violated the applicant ’ s right to respect for her private life. That right had been further violated when the MADEKKI unlawfully transferred the applicant ’ s data to the Cēsis hospital. Lastly, the court was requested to annul an administrative act – the MADEKKI ’ s report – since its findings were erroneous. Compensation in the amount of 500 Latvian lati was requested in respect of non-pecuniary damage. 15. On 12 May 2005 the Administrative District Court adopted a judgment by which it terminated the proceedings with regard to the request to annul the MADEKKI report, as in the court ’ s opinion the report did not create any specific rights or obligations for the applicant and thus could not be considered an administrative act, and dismissed the remainder of the application as ill- founded. 16. Counsel for the applicant appealed and on 16 June 2006 the Administrative Regional Court adopted a judgment by which it upheld in full the first - instance court ’ s judgment and endorsed that court ’ s reasoning, essentially equating the activities of the MADEKKI with the provision of health care, which, according to domestic law, was a legitimate reason for gathering personal data. 17. On 8 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law lodged by the applicant, in which reference was made, inter alia, to Article 8 of the Convention and to the cases of Z v. Finland ( 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I) and M.S. v. Sweden (27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV). 18. The Senate agreed with the lower courts that the MADEKKI report could not be considered an administrative act. It further considered that this report was not an action of a public authority ( faktiskā rīcība ) and thus was not amenable to review in administrative courts. 19. It thus remained for the Senate to address the applicant ’ s claims that the MADEKKI ’ s actions in preparing the report had been unlawful. In this regard the Senate considered that the Medical Treatment Law gave the MADEKKI the right to examine the quality of medical care provided in medical institutions not only upon receiving a corresponding complaint from a patient but also when a request for such examination had been submitted by a medical institution, which had an obligation to protect the interests of the society so that, should any irregularities be found by the MADEKKI, they might be eliminated and their recurrence with respect to other patients avoided in the future. 20. The Senate agreed with the applicant that the processing of sensitive data concerning her constituted an interference with her rights guaranteed by, inter alia, Article 8 of the Convention. The Senate then went on to summarise the findings of the Strasbourg Court in the two cases invoked by the applicant, emphasising in particular that the Convention left to the States a wide margin of appreciation in balancing the confidentiality of medical data and the necessity to preserve patients ’ confidence in the medical profession and in the health services in general. 21. The Senate further held that both the Medical Treatment Law and the Personal Data Protection Law contained exceptions that permitted the MADEKKI to collect and process the otherwise confidential medical data. The former listed such exceptions explicitly (see paragraph 30 below), while the latter allowed processing of medical data for the purposes of medical treatment or the provision or administration of heath care services (see paragraph 2 8 below) or if processing of personal data was necessary for a system administrator to carry out his legal duties (see paragraph 2 9 below). The Senate continued as follows: “ according to [the law] the MADEKKI has a duty to control the quality of medical care. In order to carry out such control, the MADEKKI requires information about the patient and his care ”. 22. The Senate concluded as follows: “Taking into account the aforementioned, the [Senate] finds that restrictions to a person ’ s private life connected to gathering and processing of sensitive personal data are provided for by law. When regulating this question, the legislator has already assessed the aim and proportionality of such restrictions, as well as has provided for safeguards against unjustified disclosure of the above-mentioned data. Consequently [the applicant ’ s] argument that the Regional Court ought to have assessed the aim and proportionality of the restriction is unfounded. Additionally the [Senate] considers that the Regional Court has correctly interpreted and applied the above-mentioned legal provisions and has come to the correct conclusion that the MADEKKI, in order to carry out the control of the quality of medical care, which it is competent to do, had a right to receive and process [the applicant ’ s] sensitive data without asking for her consent and that the MADEKKI has acted within its sphere of competence and in accordance with the provisions of the law concerning the processing of sensitive personal data. The MADEKKI used the information it had collected about [the applicant] in order to carry out its functions, namely, to control the quality of the medical care provided to [the applicant], while to the Cēsis hospital it only handed over its conclusions concerning the legality of the doctors ’ actions, which did not contain [the applicant ’ s] sensitive data. ” 23. For these reasons the Senate decided to uphold the lower courts ’ decisions. | The applicant alleged in particular that the collection of her personal medical data by a State agency – in this case, the Inspectorate of Quality Control for Medical Care and Fitness for Work (“MADEKKI”) – without her consent had violated her right to respect for her private life. |
107 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE A. Background 10. In May 2008 the first applicant turned to the child welfare services because she was pregnant and was in a difficult situation: she did not have a permanent home and was temporarily staying with her parents. 11. On 10 June 2008 the first applicant and the putative future father, Z, visited a gynaecological polyclinic at the regional hospital. According to the medical notes recorded that day, the doctor was informed that the first applicant had had a late abortion in October 2007 and that she also wanted to abort this time. A chlamydia test and an ultrasonography were carried out, and the first applicant and Z informed that an abortion would not be possible. 12. On 23 June 2008 the hospital confirmed that the result of the chlamydia test taken on 10 June 2008 was positive. As one of the measures taken by the birth clinic to monitor the first applicant and her situation, the doctor noted that a social worker would make contact with the child welfare services, in agreement with the first applicant. A social worker, J.T., at the hospital noted the following day that the first applicant had expressed a strong wish for a place at a parent-child institution on the grounds that she was limited on account of a brain injury ( begrensninger på grunn av hjerneskade ) sustained following an epileptic seizure; she had no home, and a difficult relationship with the child ’ s putative father and other family members; and that she wanted help to become as good a mother as possible. It was noted by the hospital that any stay at a parent-child institution would be voluntary and that the first applicant and her child could leave whenever they wished. 13. On 1 July 2008 the hospital notified the child welfare services that the first applicant was in need of guidance concerning the unborn child and monitoring with regard to motherhood. The hospital also indicated that she needed to stay at a parent-child institution. The child welfare services took on the case, with the first applicant ’ s consent. She agreed to stay at a parent ‑ child institution for three months after the child was born, so that her ability to give the child adequate care could be assessed. 14. On 16 July 2008 a meeting with the child welfare services took place. A psychologist, I.K.A., from the Office for Children, Youth and Family Affairs attended the meeting. According to the notes from the meeting, it was agreed that the first applicant should receive psychological counselling on a weekly basis in the social worker ’ s absence during the summer, and that the psychologist would give subsequent reports to the child welfare services. 15. On 16 September 2008 a formal decision was taken to offer the first applicant and her child a place at a parent-child institution for three months. The decision stated that the child welfare services were concerned about the first applicant ’ s mental health and her ability to understand the seriousness of taking responsibility for a child and the consequences. 16. Some days earlier, on 9 September 2008, the child welfare services and the first applicant had agreed on a plan for the stay. In the plan it was stated that the main purpose of the stay would be to examine, observe and guide the first applicant in order to equip her with sufficient childcare skills. A number of more specific aims were also included, involving observation of the mother and child and examination of the mother ’ s mental health ( psyke ) and maturity, her ability to receive, understand and avail herself of advice in relation to her role as a mother, and her developmental possibilities. Working with the first applicant ’ s network was also included as an aim in the plan. 17. On 25 September 2008 the first applicant gave birth to a son, X, the second applicant. The first applicant then refused to provide the name of X ’ s father. Four days later, on 29 September 2008, the first applicant and X moved to the parent-child institution. For the first five days X ’ s maternal grandmother also stayed there with them. 18. On 10 October 2008 the parent-child institution called the child welfare services and expressed concern on the part of their staff. According to the child welfare services ’ records, the staff at the institution stated that X was not gaining sufficient weight and lacked energy. With regard to nappy changes, the staff had to repeatedly ( gang på gang ) tell the first applicant that there were still traces of excrement, while she continued to focus on herself. 19. On 14 October 2008 the staff at the parent-child institution said that they were very concerned about X and the first applicant ’ s caring skills. It had turned out that the first applicant had given an incorrect weight for the baby and that X had, accordingly, lost more weight than previously assumed. Moreover, she showed no understanding of the boy ’ s feelings ( viser ingen forståelse av gutten sine følelser ) and seemed unable to empathise with the baby ( sette seg inn i hvordan babyen har det ). The staff had decided to move the first applicant into an apartment on the main floor in order to get a better overview and to monitor her even more closely. The next meeting between the first applicant, the staff at the parent-child institution and the child welfare services had been scheduled for 24 October 2008, but the staff at the institution wanted to bring the meeting forward as they were of the view that the matter could not wait that long. B. Proceedings to place X in emergency foster care 20. On 17 October 2008 a meeting between the parent-child institution, the first applicant and the child welfare services was held. The first applicant stated at the meeting that she wanted to move out of the institution together with her child, as she no longer wanted guidance. The staff at the institution stated that they were very concerned about the first applicant ’ s caring skills. She did not wake up at night, and the boy had lost a lot of weight, lacked energy and appeared dehydrated. The health visitor was also very concerned, whereas the first applicant was not. The institution had established close 24-hour monitoring. Staff had stayed awake at night in order to wake the first applicant up to feed the child. They had monitored the first applicant every three hours round the clock in order to ensure that the boy received nourishment. They expressed the fear that the child would not have survived had they not established that close monitoring pattern. The child welfare services considered that it would create a risk if the first applicant removed the child from the institution. X was below critical normal weight ( kritisk normalvekt ) and in need of nutrition and monitoring. 21. In the decision taken on the same date it was also stated that the first applicant had given information about the child ’ s father to the child welfare services, but that she had refused him permission to take a paternity test and to sign as father at the hospital. It was stated that the father wanted to take responsibility for the child, but that he did not yet have any rights as a party to the case. 22. It was decided to place X in an emergency foster home and that the first applicant and her mother should visit him for up to one and a half hours weekly. As to the boy ’ s needs, it was stated that he had lost a lot of weight and accordingly needed close and proper monitoring. It was emphasised as very important that good feeding routines be developed. Further, according to the plan, the placement was to be continuously assessed by the first applicant, the emergency foster parents, a specialist team ( fagteam ) and the child welfare services. The municipality was to stay in contact with the emergency foster parents and be responsible for being in contact with and following up on the first applicant. Preliminary approval of the decision was given by the chair of the County Social Welfare Board ( fylkesnemnda for barnevern og sosiale saker ) on 21 October 2008. 23. On 22 October 2008 the first applicant appealed to the County Social Welfare Board against the emergency decision. She claimed that she and X could live together at her parents ’ house, arguing that her mother stayed at home and was willing to help care for X and that she and her mother were also willing to accept help from the child welfare services. 24. On 23 October 2008 a family consultant and a psychologist from the parent-child institution drew up a report of the first applicant ’ s and her mother ’ s stay there. The report referred to an intelligence test that had been carried out in which the first applicant had obtained a higher score than 67 % of persons of her age on perceptual organisation (meaning organisation of visual material) and below 93% of persons her age on verbal understanding. On tasks that required working memory – the ability to take into account and process complex information – the first applicant had scored below 99% of persons her age. According to the report, the tests confirmed the clinical impression of the first applicant. Furthermore, the report stated that the institution ’ s guidance had focused on teaching the first applicant how to meet the child ’ s basic needs in terms of food, hygiene ( stell ) and safety. The first applicant had received verbal and hands-on guidance and had consistently ( gjennomgående ) needed repeated instructions and demonstration. In the staff ’ s experience, the first applicant often did not understand what was told or explained to her, and rapidly forgot. In the conclusion the report stated, inter alia : “The mother does not care for her child in a satisfactory manner. During the time the mother and child have stayed [at the parent-child institution] ..., the staff here ... have been very concerned that the child ’ s needs are not being met. In order to ensure that the child ’ s primary needs for care and food are met, the staff have intervened and closely monitored the child day and night. The mother is not able to meet the boy ’ s practical care needs. She has not taken responsibility for caring for the boy in a satisfactory manner. The mother has needed guidance at a very basic level, and she has needed advice to be repeated to her several times. Throughout the stay, the mother has made statements that we find very worrying. She has expressed a significant lack of empathy for her son, and has several times expressed disgust with the child. The mother has demonstrated very little understanding of what the boy understands and what behaviours he can control. The mother ’ s mental functioning is inconsistent and she struggles considerably in several areas that are crucial to the ability to provide care. Her ability to provide practical care must be seen in the light of this. The mother ’ s mental health is marked by difficult and painful feelings about who she herself is and how she perceives other people. The mother herself seems to have a considerable unmet care need. Our assessment is that the mother is incapable of providing care for the child. We are also of the opinion that the mother needs support and follow-up. As we have verbally communicated to the child welfare services, we believe it to be important that especially close care is taken of the mother during the period following the emergency placement. The mother is vulnerable. She should be offered a psychological assessment and treatment, and probably needs help in finding motivation for this. The mother should have an individual plan to ensure follow-up in several areas. The mother has resources (see the abilities tests) that she needs help to make good use of.” 25. On 27 October 2008 the Board heard the appeal against the emergency placement decision (see paragraphs 22 and 23 above). The first applicant attended with her legal - aid counsel and gave evidence. Three witnesses were heard. 26. In a decision of the same day, signed by the Board ’ s chairperson, the Board concluded that it had to rely on the descriptions given by the psychologist at the parent-child institution, who had drafted the institution ’ s report, and the representative from the municipal child welfare services. According to those descriptions, the first applicant had been unable to care for X properly ( betryggende ) in entirely essential and crucial respects ( helt vesentlige og sentrale områder ). Furthermore, she had said that she wanted to leave the institution. It had been obvious that she could not be given care of X without creating a risk that he would suffer material harm. Afterwards, the first applicant ’ s parents had said that they would be capable of ensuring that X was adequately looked after. However, the Board concluded that this would not provide X with sufficient security. The first applicant ’ s mother had given evidence before the Board and had stated that during her stay at the parent-child institution she had not experienced anything that gave rise to concern with respect to the first applicant ’ s care for X. This was in stark contrast to what had been reported by the psychologist. The Board also concluded that it was the first applicant who would be responsible for the daily care of X, not her mother. 27. On the same day, 27 October 2008, X was sent to a child psychiatry clinic for an assessment. 28. On 30 October 2008 the first applicant appealed against the Board ’ s decision of 27 October 2008 (see paragraphs 25 - 26 above) to the City Court ( tingrett ). 29. On 13 November 2008 the first applicant visited X in the foster home; according to the notes taken by the supervisor, Z had received the result of a paternity test the day before which had shown that he was not the father. The first applicant stated that she did not know who the father could be. She could not remember having been with anyone else. The first applicant and the adviser from the child welfare services agreed that the first applicant would contact her doctor and ask for a referral to a psychologist. 30. On 21 November 2008 an adviser working with emergency placements ( beredskapshjemskonsulent ) at the Office for Children, Youth and Family Affairs produced a report on the implementation of the emergency measure. In the conclusion she stated: “The boy arrived at the emergency foster home on 17/10 with little movement in his arms and legs, and making few sounds. He could not open his eyes because they were red, swollen and had a lot of discharge. He was undernourished, pale and weak [( slapp )]. After a few days he started to move, make sounds and develop skin colour. He ate well at all meals, and enjoyed bodily contact. He opened his eyes upon receiving the correct medication and gradually started to be in contact with his surroundings. Good routines were put in place and he was closely followed up with respect to nourishment and development. The boy has developed very well in all areas in the five weeks he has been living in the emergency foster home. The doctor and health visitors were satisfied with the boy ’ s development and have monitored him closely. Bup [( Barne - og ungdomspsykiatrisk poliklinikk – the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic )] has also followed up on the boy and reported possible stress symptoms developed by the boy during the pregnancy or the first weeks of his life. The emergency foster parents have provided favourable conditions for the boy to work on his development, and this has worked well. The boy needs stable adults who can give him good care, appropriate to his age [( aldersadekvat omsorg )], and satisfy his needs in future.” 31. On 28 November 2008 the municipality applied to the County Social Welfare Board for a care order, submitting that the first applicant lacked caring skills with respect to a child ’ s various needs. They considered that X would rapidly end up in a situation in which he would be subjected to serious neglect if he were returned to the first applicant. As to contact rights, the municipality submitted that they assumed that it would be a matter of a long-term placement and that X would probably grow up in foster care. They stated that the first applicant was young, but that it was assumed that her capacity as a mother would be limited, at least in relation to X ( [m]or er ung, men det antas at hennes kapasitet som mor vil være begrenset, i hvert fall i forhold til dette barnet ). 32. On 5 December 2008 the team at the child psychiatry clinic, who had carried out six different observations between 3 and 24 November 2008, in accordance with the instructions of 27 October 2008 (see paragraph 27 above), set out their results in a report, which read, inter alia, as follows : “[X] was a child with significantly delayed development when he was sent to us for assessment and observation. Today he is functioning as a normal two-month-old baby, and has the possibility of a good normal development. He has, from what can be observed, been a child at high risk. For vulnerable children the lack of response and confirmation, or other interferences in interaction, can lead to more or less serious psychological and developmental disturbances if they do not receive other corrective relationship experiences. The quality of the earliest interaction between a child and the closest caregiver is therefore of great importance for psychosocial and cognitive development. [X] bears the mark of good psychosocial and cognitive development now.” 33. The City Court, composed of one professional judge, one psychologist and one lay person, pursuant to section 36-4 of the Dispute Act (see paragraph 133 below), heard the appeal against the Board ’ s decision in the emergency case (see paragraphs 25-26 and 28 above) on 12 January 2009. In its judgment of 26 January 2009 it stated first that an interim decision pursuant to the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 122 below) could only be made if the risk of harm was acute and the child would suffer material harm if not moved immediately. It went on to state that the case concerned a child who had been practically newborn when the interim care order had been made, and that the placement had since been reconsidered several times following appeals on the part of the mother. 34. In its conclusion the City Court stated that it was in no doubt that X ’ s situation had been serious when the interim care order had been issued. He had shown clear signs of neglect, both psychologically and physically. The City Court found that the “material” harm requirement ( vesentlighetskravet ) in the second paragraph of section 4-6 of the Child Welfare Act (see paragraph 122 below) had been met. X was at the time of its judgment in better health and showed normal development. This was due to the emergency foster parents ’ efforts and follow-up. The City Court did not consider that the first applicant ’ s ability to provide care had changed and feared that X would suffer material harm if he were now returned to her. This was still the case even if the first applicant lived with her parents and they supported her. It was her ability to provide care that was the matter of assessment. 35. Based on the above, the City Court did not find grounds to revoke the emergency care order pending a decision by the County Social Welfare Board on the question of permanent care. 36. The first applicant did not appeal to the High Court ( lagmannsrett ). C. Proceedings for a care order 1. Proceedings before the County Social Welfare Board 37. The Board, composed of an administrator qualified to act as a professional judge, a psychologist and a lay person, in accordance with section 7-5 of the Child Welfare Act (see paragraph 122 below), held a hearing on the child welfare services ’ request for a care order (see paragraph 31 above) on 17 and 18 February 2009. The first applicant attended and gave evidence. Seven witnesses were heard, including experts and the first applicant ’ s parents, their neighbour and a friend of the family. At the hearing the child welfare services requested that X be taken into local authority care, placed in a foster home and that the first applicant be granted contact rights for two hours, four times per year, under supervision. The first applicant sought to have the request for a care order rejected and X returned to her. In the alternative, she asked for contact rights of a minimum of once per month, or according to the Board ’ s discretion. 38. In a decision of 2 March 2009 the Board stated at the outset that, independently of the parties ’ arguments and claims, its task was to decide whether X was to be taken into care by the child welfare services. If a care order were issued, the Board would also choose a suitable placement and determine the contact arrangements. 39. The Board concluded that the fundamental condition set out in letter (a) of the first paragraph of section 4-12 of the Child Welfare Act had been met (see paragraph 122 below). In its opinion, a situation involving serious deficiencies in both psychological and practical care would arise if X were returned to live with the first applicant. 40. The Board emphasised that it had assessed the first applicant ’ s ability as a caregiver and changes in her approach, not her condition or personality traits. However, the Board noted that the parent-child institution had considered the first applicant ’ s inability to benefit from guidance to be linked to her cognitive limitations. Reference was made to conclusions drawn by the institution to the effect that the relevant test results were consistent with their daily observations (see paragraph 24 above). The tests carried out at the institution were also largely consistent with previous assessments of the first applicant, and also with the concerns reported by, inter alia, the psychologist at the Office for Children, Youth and Family Affairs in the summer of 2008 (see paragraph 14 above). In the Board ’ s view, the above factors suggested that the first applicant ’ s problems were of a fundamental nature and that her potential for change was limited ( sier noe om at mors problematikk er av en grunnleggende karakter og at endringspotensialet er begrenset ). 41. The Board stated that it had to conclude that a care order was necessary and in the best interests of X. As to a suitable placement, the Board stated that, having regard to his age and care needs, a foster home placement was clearly the best solution for X at the time. It issued a care order to that effect. Based on X ’ s age and vulnerability, the Board also decided that he should be placed in enhanced foster care – an arrangement whereby the foster home was given extra assistance and support – at least for the first year. 42. Turning to the question of contact rights, the Board went on to state that, under section 4-1 9 of the Child Welfare Act (see paragraph 122 below), children and parents were entitled to contact with each other unless otherwise decided. When a care order was issued, the Board would determine the amount of contact and decisions regarding contact had to be in the child ’ s best interests, as provided for by section 4-1 of the Child Welfare Act (ibid.). The purpose and duration of the placement also had to be taken into consideration when the amount of contact was determined. 43. On the grounds of the information available at the time of the Board ’ s decision, the Board envisaged that X would grow up in the foster home. This was on account of ( har sammenheng med ) the first applicant ’ s fundamental problems and limited potential for change ( mors grunnleggende problematikk og begrensede endringspotensial ) (see paragraph 40 above). This meant that the foster parents would become X ’ s psychological parents, and that the amount of contact had to be determined in such a way as to ensure that the attachment process, which was already well under way, was not disrupted. X had to be given peace and stability in his everyday life, and he was assumed ( det legges til grunn ) to have special needs in that respect. In the Board ’ s opinion, the purpose of contact had to be to ensure that he had knowledge of his mother. 44. Based on an overall assessment, including of the above factors, the amount of contact was set at two hours, six times per year. The Board stated that it had some misgivings as to whether this was too frequent, particularly considering X ’ s reactions. However, it believed that contact could be somewhat improved by the child welfare services providing more guidance and adaptation and by a considerable reduction in the frequency of contact. 45. In the Board ’ s opinion, it was necessary for the child welfare services to be authorised to supervise contact in order to ensure that X was properly cared for. 46. The Board ’ s decision concluded with a statement to the effect that it would be for the child welfare services to decide on the time and place of the contact sessions. 2. Proceedings before the City Court 47. On 15 April 2009 the first applicant appealed to the City Court against the Board ’ s decision that X should be taken into public care (see paragraphs 38 - 46 above). She submitted, in particular, that adequate conditions in the home could be achieved through the implementation of assistance measures and that the care order had been decided without sufficient assistance measures having first been implemented. 48. On 6 May 2009 the child welfare services sent the first applicant a letter in which she was invited to a meeting to discuss what sort of help they could offer her. The letter stated as follows : “The child welfare services are concerned that you receive help to process what you have been through in relation to the taking into care, etc. It is still an offer that the Child Welfare Service cover the costs of a psychologist, if you so wish.” 49. On 14 May 2009 the first applicant attended a contact session together with two acquaintances. According to the report, a situation arose in which the supervisor from the child welfare services stated that the first applicant would have a calmer time with X if she were alone with him. The first applicant said that the supervisor had to understand that she wanted to bring people with her because she was being badly treated. It was ultimately agreed that one of the acquaintances would accompany the first applicant. During the session the first applicant stated that she had received an unpleasant ( ukoselig ) letter from the child welfare services offering her an appointment to discuss any help that she might need (see paragraph 48 above). The first applicant stated that she did not want any help and that she certainly did not need psychological counselling. 50. On 19 August 2009 the City Court gave judgment on the question of the care order (see paragraph 47 above). At the outset the City Court stated that the case concerned judicial review of a care order issued pursuant to section 4-12 of the Child Welfare Act (see paragraph 122 below), which was to be considered pursuant to the rules in chapter 36 of the Dispute Act. When undertaking a judicial review of the County Social Welfare Board ’ s decision, the court had power to review all aspects of the decision, both legal and factual, as well as the administrative discretion. It was well established in law that its review of the Board ’ s decision should not be based on the circumstances at the time of the Board ’ s decision, but on the circumstances at the time of its judgment. The court would not therefore normally go into more detail regarding the Board ’ s assessment of the grounds for issuing a care order. However, the City Court went on to state that it nonetheless found that special reasons made it necessary to do so in the instant case. 51. Based on the evidence presented to it, the City Court ultimately concluded that it had not, either at the time of its judgment or previously, been sufficiently substantiated that there existed such deficiencies in the first applicant ’ s ability to provide care that the conditions for the child welfare services maintaining care and control of X were met. It found, inter alia, that X ’ s problems with weight gain could have been due to an eye infection. The Board ’ s decision should therefore be revoked. 52. X was therefore to be returned to the first applicant and the City Court found that the parties understood that this had to be done in a way that would prevent X from facing further trauma. X had lived with his foster parents for ten months and had formed an attachment to them. Based on what had emerged during the proceedings, the City Court assumed that the child welfare services would give the first applicant and the foster parents the assistance they needed. The first applicant had said that she was willing to cooperate and, given that willingness, the City Court believed that it must be possible to establish the cooperative environment necessary for the child welfare services to be able to provide the help she might need. 53. In the days following the City Court ’ s judgment there were a number of email exchanges between the first applicant ’ s counsel and the child welfare services, and a meeting was held on 26 August 2009. The following day the first applicant, through her counsel, requested an appointment so that she could immediately ( omgående ) pick X up from the foster home and bring him home with her. She also requested that this be on Saturday 29 August 2009. She stated that the foster mother could deliver X and stay as long as she wanted. The foster mother was also welcome to visit X when she wished, upon agreement with the first applicant. Representatives from the child welfare services were not welcome. 54. The applicant ’ s request to have X immediately returned to her was not met by the child welfare services, but the amount of contact was increased. On 1, 3, 4 and 7 September 2009 contact sessions were held at the house of the first applicant ’ s parents. The supervisor took detailed notes from each session as well as from conversations with the foster mother, and made a summary report of all the sessions. She noted, inter alia, that the foster mother had stated that the session on 1 September 2009 had “gone well [( gikk greit )] in many ways”, but that X had become very tired afterwards. He had been uneasy and difficult to put to bed. At the end of the session on 3 September, the supervisor noted that X appeared completely exhausted and pale. X ’ s apparent tiredness was noted also in relation to the sessions on 4 and 7 September. Furthermore, it emerges from the notes that the supervisor found it strange ( underlig ) that X had not been offered food, even though the family had been informed that it was his meal time. The supervisor had noted that the first applicant had taken note of this information on the first day, but then forgotten it again by the next day. The report stated that the supervisor was uncertain as to whether this had to do with the first applicant ’ s insecurity and fear of asking. The report also contained details about X ’ s reactions to the sessions, with respect to crying, sleeping, digestion and other behaviour. 3. Proceedings before the High Court 55. On 4 September 2009 the municipality sought leave to appeal against the City Court ’ s judgment (see paragraphs 50-52 above), requested that the Board ’ s decision of 2 March 2009 be upheld (see paragraphs 38-46 above), and concurrently applied for implementation of the City Court ’ s judgment to be suspended. The municipality argued, firstly, that the City Court ’ s judgment was seriously flawed. They claimed that it was unlikely that the eye infection could have been the reason for X ’ s slow weight gain. Moreover, the first applicant had had visits with X, but they had not worked well even though she had been given advice on how to improve them. X had had strong reactions after those visits. Secondly, the municipality submitted that the case raised a question of general interest, namely relating to the first applicant ’ s intellectual functioning ( kognitive ferdigheter ). They stated that she had general learning difficulties and that tests had shown that she had specific difficulties, with consequences for her daily functioning. Her abilities in verbal reasoning, relating to complex information and analysing and acting in situations that arose, were matters relevant to the provision of adequate care for a child. In that context the municipality referred to a number of questions that, in their view, had to be answered, relating, inter alia, to what the first applicant was or was not capable of doing – and whether it was appropriate to leave a small child with her – and whether there were realistic assistance measures that could compensate for her shortcomings. 56. On 8 September 2009 the City Court decided to stay enforcement of its judgment until the High Court had adjudicated the case. 57. In her response of 11 September 2009 to the municipality ’ s appeal, the first applicant, through her counsel, stated that the municipality had proceeded on the grounds that she was almost retarded ( nærmest er tilbakestående ) and therefore incapable of taking care of a child, which she found to be an insulting allegation ( grov beskyldning ). Nor were there, in her view, any flaws in the City Court ’ s judgment. 58. On 9 October 2009 the child welfare services decided to appoint two experts – a psychologist, B.S., and a family therapist, E.W.A. – to assess X in relation to his strong reactions after the period in which there had been frequent contact sessions at the home of the first applicant ’ s parents (see paragraph 54 above). In addition to examining the reasons for X ’ s reactions, the experts were asked to provide advice and guidance to the foster mother as to how to handle the reactions and to the first applicant, if she agreed, with respect to the contact sessions. 59. On 12 October 2009 the High Court granted leave to appeal on the ground that the ruling of, or procedure in, the City Court had been seriously flawed (see paragraph 55 above and paragraph 133 below). It also upheld the City Court ’ s decision to stay enforcement of the judgment (see paragraph 56 above). 60. On 4 November 2009 the first applicant ’ s counsel asked the child welfare services whether the offer of counselling to the first applicant (see paragraph 48 above) was still valid. In their response, of 12 November 2009, the child welfare services stated that they were worried about the first applicant and that it was important that she obtained help. They confirmed that they would cover the costs of a psychologist or other counsellor of the first applicant ’ s choice and that they would not ask the person chosen for any information or to act as a witness in the child welfare case. 61. On 15 November 2009 the High Court appointed an expert psychologist, M.S., to assess the case. 62. On 20 February 2010 the two experts appointed by the child welfare services to examine the contact sessions and the effects on X (see paragraph 58 above) delivered their report, which was over 18 pages long. In the report they stated that they had not observed any contact sessions, “as this [had been] done by the expert appointed by the High Court”. They further stated that the first applicant had refused guidance with respect to the contact sessions. In the chapter entitled “ Is it possible to hypothesise on parents ’ competence in contact situations based on their competence as caregivers? ”, the following was stated: “When reviewing the various documents we find that [the parent-child institution] describes a severe lack of the abilities that are required in the mothering role, which is similar to the pattern we see during the contact sessions more than one year later. For example, the mother demonstrates a lack of ability in basic parental care during the contact sessions, as we have described above. Furthermore, her parental regulation during the contact sessions is insensitive. She seems to have significant problems with identifying X ’ s affects by sharing joy and making him feel secure and guiding him through confirmation and putting names on things. This is very serious. We find that the mother has significant problems in all the contact sessions and that it is difficult not to say that these problems will also extend to her general competence as a caregiver. In a report dated 19 February 2008, i.e. two years ago, Dr Philos. [H.B.], a specialist in clinical neurology, states the following: ‘ There are no significant changes in the results of intelligence tests conducted before the operation and at the check-up two years after the operation. Her results in the intelligence tests have been very similar since she was 10.5 years old, i.e. her intelligence has been stable throughout all these years. ’ He says that her intellectual functioning is approximately two standard deviations below her peers and that she has problems with her long-term memory and with transferring information from one thing to another. We find that it is more problematic than usual for the mother to have supervised contact sessions because of her cognitive issues, because from time to time [( fra gang til gang ) ] she does not know what to do in relation to the boy and because she is very driven by impulses. [H.B.] ’ s report also states that she has problems understanding the content of what she is reading, and we also find that she cannot read and understand the situation when she is with her child. We find this to be an important and fundamental issue in shedding light on the mother ’ s competence in contact situations and her competence as a caregiver. As regards the mother ’ s competence as a caregiver in relation to the mother ’ s cognitive skills, we assume that this will be further elucidated by [ M.S. ], the expert psychologist appointed by the Court of Appeal. This is considered to play a role in relation to the mother ’ s behaviour vis-à-vis X during the contact sessions and her struggle to become emotionally attuned to his needs at different ages. On page 5 of its report [(judgment)] from 2009, the City Court summarises [ the situation ] as follows: ‘ It is generally known that many women, especially women who are giving birth for the first time, can have a psychological reaction after the birth which, in extreme situations, can take the form of serious postnatal depression. All reactions in the form of feelings of alienation and insecurity in relation to the newborn are within the normal range. ’ We find that the mother ’ s difficulties during the contact sessions cannot be regarded as serious postnatal depression since the mother ’ s difficulties during the contact sessions have shown a similar pattern for more than 1.5 years. This is more a sign of inadequate basic parenting skills and is not related to postnatal depression alone. We consider it crucial [( avgjørende viktig )] that the mother ’ s difficulties during the contact sessions and her competence as a caregiver in general be understood in the light of more complex psychological explanatory models relating to both cognitive issues and serious traumatic experiences both early in life and as an adult, which we know, based on research, affect a person ’ s ability to function as a parent without considerable individual efforts and treatment. We assume that the expert psychologist will describe this in more detail.” 63. On 3 March 2010 the expert psychologist appointed by the High Court, M.S. (see paragraph 61 above), delivered her report. She had observed two contact sessions, one attended by the first applicant alone and the other attended by the first applicant together with her mother and sister. The chapter entitled “Social and academic functioning” contained, inter alia, the following: “Throughout the years SSE [( Statens senter for epilepsi )] has carried out repeated assessments of [the first applicant] using tests that measure the course of her illness and tests that focus more on describing her functioning. In this case, there has been a particular focus on the WISC-R test, which has been conducted both pre- and postoperatively. The results from this test are expressed as an IQ score which has been a topic of discussion in the child welfare case of which the present report is also a part. It is therefore relevant to make some comments on these test scores. The WISC-R is a very well-known and frequently used test to measure intellectual abilities in children. Such abilities are associated with school performance. The test result provides useful information about a child ’ s ability to learn and make use of learning. A functioning profile from a WISC-R test therefore forms the basis for targeted special education measures in school and can help when preparing individually adapted educational arrangements for children with special needs. The end-product of an intelligence test is an IQ score, which is an operational definition of intelligence that provides a numeric expression of how abilities defined as intelligence are distributed among individuals in a population. The test is standardised, i.e. there is a statistical normal distribution with an average deviation on both sides. The WISC-R has a defined average of 100 with a standard deviation of +-15. A score within the range of distribution 85-115 is said to be within the normal range, where 68% of the population of comparison are situated, whereas 98% are within two standard deviations, i.e. 70-130 points. When conducting a diagnostic assessment of an IQ score, persons with IQ scores between 50 and 69 are defined as slightly mentally retarded. Intelligence test performance can be improved in the course of a person ’ s developmental history if the fundamental cognitive resources are there. In this case, there is information that [the first applicant] ’ s IQ score has been stable throughout her childhood and adolescence, which means that she has not caught up intellectually after her brain surgery. 1.3. Summary Anamnestic information from the school, the specialist health service and the family provides an overall picture of weak learning capacity and social functioning from early childhood into adulthood. [The first applicant] performed poorly at school despite good framework conditions, considerable extra resources and good efforts and motivation on her own part. It is therefore difficult to see any other explanation for her performance than general learning difficulties caused by a fundamental cognitive impairment. This is underlined by her consistently low IQ score – regardless of the epilepsy surgery. She also had problems with socio-emotional functioning, which has also been a recurring topic in all the documents that deal with [the first applicant ’ s] childhood and adolescence. A lack of social skills and social adaptation is reported, primarily related to social behaviour that is not commensurate with her age [( ikke-aldersadekvat sosial fremtreden )] ( ‘ childish ’ ) and poor impulse control. It is also stated that [the first applicant] has been very reserved and had low self-confidence, which must be seen in conjunction with her problems.” In the chapter entitled “Assessment of care functioning, competence in contact situations and the effect of assistance measures”, the report contained the following: “5.1. Competence as a caregiver As is clear from the above, I have placed particular emphasis on the consequences of [the first applicant ’ s] condition in relation to her general functioning and whether she has what it takes to care for a child. It is important to note that neither [the first applicant] herself nor her parents believe that there is a connection between her history of illness, her adult functioning and her ability to provide care. It is not the case that epilepsy deprives people of their ability to provide care, just as a low IQ score in itself is not a reason to take a child into care. However, a test result can help to elucidate why someone ’ s functioning capacity is impaired, particularly if this is seen in conjunction with other observations and descriptions. [The first applicant] has had serious refractory epilepsy since she was an infant. This is an unstable form of epilepsy that changes the brain and affects the entire personality development. There is also the matter of the side effects of the strong medication she took throughout her childhood. Dr [R.B.L.] at SSE, who knows [the first applicant] ’ s history very well, talks about ‘ the burden of epilepsy ’, i.e. the socio-emotional problems that can be generated through a reduced ability to learn and social maladjustment. It is therefore completely reasonable to assume that the burden of the disease in itself has set her back somewhat. Objective measurements of her functioning made at different times during her upbringing confirm this. Seen in conjunction with clinical observations, an impression is formed of [the first applicant] as a young woman with significant cognitive impairment. In my opinion, this is what the public health services identified when [the first applicant] reported her pregnancy and that gave cause for concern. Terms such as ‘ immature ’ and ‘ childish ’ frequently occur in descriptions of her behaviour throughout her upbringing and are still used now that she is 24 years old. [The first applicant] ’ s appearance and behaviour largely qualify her for the use of such adjectives: she is small, delicate and looks much younger than her chronological age. She lives at home with her parents where her room has Moomins wallpaper and is filled with objects you would expect to see in a teenager ’ s room. I am concerned about [the first applicant] ’ s self-care. She seems young, insecure and partly helpless. Her relationship with men seems unclear. She had a romantic relationship with a man whom she also lived with for a short time, but the relationship was characterised by turbulence with episodes of sexual violence. She became pregnant with X while she was still together with her boyfriend, without [the first applicant] having been able to explain how it came about that her boyfriend is not the child ’ s father. She has seemed confused about this and has told different stories. She has also contracted a sexually transmitted disease (chlamydia) without knowing the source of the infection. [The first applicant] has wanted a child, but has left things up to chance without considering the consequences of having sole responsibility for the child and what this requires. On 7 November 2007 she told the doctor at SSE that she was not using birth control and thought that she might be pregnant at that time. Later that same day she said that she wanted to become pregnant. An abortion was carried out on the basis of social indications at [R. hospital] in November 2007 of a foetus in the 18th week of the pregnancy. [The first applicant] took a photograph of the foetus, which may seem like a bizarre action. She also received a hand and footprint of the foetus. [R. hospital] described [the first applicant] as immature with a limited network. The circumstances surrounding both pregnancies say something about [the first applicant] ’ s awareness of her own choices and their consequences. This is important in the assessment of her ability to care for a child. Furthermore, [the first applicant] has not completed an education and has not been in permanent employment. She has for the most part lived at home in her old room and has little experience of living as an independent adult with responsibility for creating structure in her life, ensuring an income and deciding on financial priorities. Her relationship with her parents is described as good at the moment, but there have been conflicts in the past. I perceive their relationship to be vulnerable. [The first applicant] herself expresses a great deal of ambivalence towards her mother, because, on the one hand, she thinks that her mother interferes too much with her life, while, on the other hand, she is very dependent on her, takes her opinions as her own and trusts her to be her guide. At the same time she is annoyed that her mother defines many things for her and wishes that her mother ‘ would get it into her thick head ’ that she needs a bit more privacy than at present. According to her mother, [the first applicant] just sat in her room after her son was taken into care. Her mother is very worried and says that she ‘ can hardly stand ’ seeing her daughter like that. In my opinion, [the first applicant] has problems with emotional regulation, which makes interaction with other people difficult for her. Since the child was taken into care, [the first applicant] has been offended, hurt and angry. These emotions are fully understandable when you feel that you have been treated unfairly, but in this case they are expressed without censorship to such an extent that it seems conspicuous. Describing the County Social Welfare Board as ‘ a bunch of rotten women who are bought off by the child welfare services ’ and the staff at [the parent-child institution] as ‘ those psychotic people ’ does not help to create an impression of an adult person who is capable of socialising with other adults in a socially appropriate manner. [The first applicant] ’ s intense outbursts of crying, both at home with her parents when we are discussing the case and during contact sessions, is also unusual behaviour for an adult. Nor is sobbing into the lap of one ’ s father or mother (as described in connection with the contact sessions) a sign that one is able to control one ’ s emotions in a manner that is commensurate with one ’ s age. Nor has [the first applicant] handled her son ’ s behaviour very maturely, but has rather felt personally rejected and acted accordingly. It is difficult to stick to the matter at hand with [the first applicant]. Her cognitive style is characterised by an inability to see connections, or to generalise. She demonstrates egocentric thinking when she keeps bringing up the evil child welfare services and when referring to how her parents and everyone else find it incomprehensible that the child was taken into care. I refer to the statement by the psychologist from [the parent-child institution] that ‘ the mother makes statements that are difficult to attach any meaning to. ’ The view that I have formed of [the first applicant] during our conversations is that she has a fragmented view of situations, meaning that different episodes are understood as individual episodes that have no connection. Accordingly, guidance is perceived as criticism, good advice as scolding etc. This inability to generalise is characteristic of [the first applicant] ’ s thinking. She also lacks the capability of abstract thinking and formal thought operations. It is difficult for her to think forwards and backwards in time. Hence, it is not easy to get an answer as to what ideas she has regarding a possible return of the child. She makes some general statements, for example that she must ask what he likes to eat and whether he watches children ’ s TV, whereas she does not offer any reflections on what special measures should be taken relating to the child ’ s emotional stress if he were to be moved. When I ask what the foster mother should do to help during the process of returning the child, [the first applicant] has no constructive suggestions. What she wants, however, is ‘ that she (the foster mother) should feel as shitty as I have for the past year ’. Such a statement, combined with the manifest hostility ( uttalt fiendtlighet ) during the contact sessions, does not bode well for co-operation with either the foster home or the child welfare services should the boy be returned. [The first applicant] has used a lot of energy on her aggression and developing hostile opinions. This has contributed to cementing the stereotypes about the child welfare services and all other helpers as adversaries. [The first applicant] ’ s thinking is characterised by an ‘ if you ’ re not with me, you ’ re against me ’ attitude, and she is unable to see nuances. Such black-and-white thinking is characteristic of individuals with limited cognitive capacity. Furthermore, I perceive [the first applicant] as being depressed. I consider her intense aggression as a strategy for holding it together psychologically. There is no reason to doubt [the first applicant] ’ s intense wish to become a good mother. She contacted the support services herself for this purpose. What ideas and expectations she had in that regard remain unclear, however. Her mother has indicated that they thought [the parent child-institution] was a sort of hotel where you could get practical help with child care. Despite all the preparatory work and thorough information provided beforehand, they did not understand that an assessment stay requires the parent to show their qualities, be observed and be placed in a learning situation. Consequently, [the first applicant] feels very betrayed and deceived – which is expressed as abusive language and threats. The stay at [the parent-child institution] illustrates that [the first applicant] had problems handling and retaining information in such a manner that it could be used to guide her behaviour. It is not a question of a lack of willingness but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect. 5.2. The effect of assistance measures Weight is attributed to the fact that [the first applicant] is now living with her parents and can continue to do so for as long as is necessary. This is an assistance measure of sorts. This may become more problematic than it would seem, however: [the first applicant] is 24 years old and wishes to become autonomous, a desire which may conflict with her mother ’ s desire to help. Neither her parents nor anyone else will be able to dictate how [the first applicant] should organise her life and her child ’ s life. If [the first applicant] wants to move out, she can do this whenever she wishes. Her parents are not concerned about this. A decision must therefore be based on the fact that – should the child be returned – one cannot with a sufficient degree of certainty know where the child ’ s care base will be in future. It must therefore primarily be based on [the first applicant] ’ s ability to provide care, not her network ’ s ability to provide care. The stay at the family centre was a strong assistance measure which had no effect. The child welfare services ’ follow-up of contact sessions has had a negative impact on the cooperation between the [applicant ’ s] family and the child welfare services. Both the family and [the first applicant] have stated that they do not want follow-up or assistance in connection with returning the child. 5.3. Conclusions In my assessment, there are grounds for claiming that there were serious deficiencies in the care the child received from the mother, and also serious deficiencies in terms of the personal contact and security he needed according to his age and development. [The first applicant] ’ s cognitive impairment, personality functioning and inadequate capacity for mentalisation make it impossible to have a normal conversation with her about the physical and psychological needs of small children. Her assessments of the consequences of having the child returned to her care and what it will demand of her as a parent are very limited and infantile, with her own immediate needs, there and then, as the most predominant feature. It is therefore found that there is a risk of such deficiencies (as mentioned above) continuing if the child were to live with his mother. It is also found that satisfactory conditions for the child cannot be created with the mother by means of assistance measures pursuant to section 4-4 of the Child Welfare Act (e.g. relief measures in the home or other parental support measures) due to a lack of trust and a reluctance to accept interference from the authorities – taking the case history into consideration.” 64. The High Court held a hearing from 23 to 25 March 2010. The first applicant attended with her legal - aid counsel. Eleven witnesses were heard and the court-appointed expert, psychologist M.S. (see paragraph 61 above), made a statement. The municipal child welfare services submitted, principally, that there should be no contact between the applicants. In the alternative, contact should take place only twice a year. The child welfare services maintained that it was a matter of a “long-term placement” ( langvarig plassering av barnet ). 65. In a judgment of 22 April 2010 the High Court upheld the Board ’ s decision that X should be taken into compulsory care (see paragraphs 38-46 above). It also reduced the first applicant ’ s contact rights to four two-hour visits per year. 66. The High Court had regard to the information in the report produced by the parent-child institution on 23 October 2008 (see paragraph 24 above). It also took account of the family consultant ’ s testimony before the court, in which it had been stated that the first applicant ’ s mother had lived with her at the institution for the first four nights (see, also, paragraph 17 above). It went on to state: “It was particularly after this time that concerns grew about the practical care of the child. The agreement was that [the first applicant] was to report all nappy changes etc. and meals, but she did not. The child slept more than they were used to. [The family consultant] reacted to the child ’ s breathing and that he was sleeping through meals. Due to weight loss, he was to be fed every three hours around the clock. Sometimes, the staff had to pressure the mother into feeding her son.” 67. The High Court found that the parent-child institution had made a correct assessment and – contrary to the City Court (see paragraph 51 above) – considered it very unlikely that the assessment would have been different if X had not had an eye infection. 68. Furthermore, the High Court referred to the report of 5 December 2008 from the child psychiatry clinic (see paragraph 32 above). It also took into account the report of the court-appointed expert, M.S. (see paragraph 63 above). 69. As the stay at the parent-child institution had been short, the High Court found it appropriate to consider the first applicant ’ s behaviour ( fungering ) during the contact sessions that had been organised subsequent to X ’ s placement in foster care. Two people had been entrusted with the task of supervising the sessions, and both had written reports, neither of which had been positive. The High Court stated that one of the supervisors had given an “overall negative description of the contact sessions”. 70. The High Court also referred to the report of the psychologist and the family therapist appointed by the child welfare services, who had assessed X in relation to the reactions that he had shown after visits from the first applicant (see paragraphs 58 and 62 above). 71. Furthermore, the High Court noted that the court-appointed psychologist, M.S. (see paragraphs 61 and 63 above), had stated in court that the contact sessions had appeared to be so negative that she was of the opinion that the mother should not have a right of contact with her son. The contact sessions were, in her view, “not constructive for the child”. In conclusion to the question of the first applicant ’ s competence as a carer, she stated in her report (see paragraph 63 above) that the stay at the parent-child institution had illustrated that the first applicant “had problems handling and retaining information in such a manner that it could be used to guide her behaviour”. She went on to state: “It is not a question of a lack of willingness, but of an inadequate ability to plan, organise and structure. Such manifestations of cognitive impairment will be invasive in relation to caring for the child and could result in neglect” (ibid.). 72. The High Court agreed with the expert M.S. ’ s conclusion before proceeding to the question whether assistance measures could sufficiently remedy the shortcomings in the first applicant ’ s parenting skills. In that respect, it noted that the reasons for the deficiencies in competence as a carer were crucial. The High Court referred at this point to the expert ’ s description of the first applicant ’ s medical history, namely how she had suffered from serious epilepsy since childhood and until brain surgery had been carried out in 2005, when the first applicant had been 19 years old. 73. The High Court noted that M.S. had also pointed out that the first applicant ’ s medical history must necessarily have affected her childhood in several ways. It based its assessment on the description by M.S. of the first applicant ’ s health problems and the impact they had had on her social skills and development. It further noted that placement at a parent-child institution had been attempted as an assistance measure (see paragraph 17 above). The stay had been supposed to last for three months, but had been interrupted after just under three weeks. As a condition for staying longer, the first applicant had demanded a guarantee that she be allowed to take her son home with her after the stay. The child welfare services had been unable to give such a guarantee, and the first applicant had therefore returned home on 17 October 2008. 74. The High Court noted that relevant assistance measures were assumed to consist of a supervisor and further help and training in how to care for children. However, the High Court found that it would take so long to provide the first applicant with sufficient training that it was not a real alternative to continued foster-home placement. Furthermore, the result of such training was uncertain. In that connection the High Court attached weight to the fact that both the first applicant and her immediate family had said that they did not want follow-up or assistance if X were returned to them. It agreed with the conclusions of the court-appointed expert, M.S. (see paragraph 63 above). 75. The High Court ’ s conclusion in its judgment of 22 April 2010 was that a care order was necessary and that assistance measures for the mother would not be sufficient to allow her son to stay with her. The conditions for issuing a care order under the second paragraph of section 4-12 of the Child Welfare Act were thus met (see paragraph 122 below). In that connection the High Court also gave weight to the attachment that X had formed to his foster parents, particularly the foster mother. As to contact rights, the High Court stated that exceptional and strong reasons were required to deprive a parent of the right of contact after a child had been taken into care, since contact was normally considered to be in the child ’ s best interests, particularly in a long-term assessment. In the instant case, despite the negative information about the contact sessions and the expert psychologist M.S. ’ s recommendation that the first applicant should not be given any contact rights, the High Court found that exceptional and strong reasons for denying contact did not exist, but that contact sessions should not take place at too short intervals. It went on to state: “As regards the frequency of the contact sessions, the High Court is split into a majority and a minority. The majority ... have found that an appropriate amount of contact would be two hours four times a year. The majority find reason to emphasise that only the mother has a right of contact. The fact that she has rarely met with [X] alone has had some unfortunate consequences. The tense atmosphere between the adults present has intensified. The stress for the child must be assumed to increase when more people are present. Fewer participants will lead to a calmer atmosphere. This is also in line with the psychologist [M.S. ] ’ s observations. The atmosphere between the adults may also become less tense when the case has been legally resolved and some time has passed. The fact that the contact sessions will become less frequent than under the previous arrangement will also reduce the stress for the child. It must be assumed that the child ’ s subsequent reactions will then decrease. However, the most important factor will be whether the mother and, if relevant, any other family members manage to cooperate better and preferably convey a positive attitude towards the foster mother, in particular during the contact sessions. The majority ’ s conclusion that the contact sessions cannot be more frequent than four times a year is related to what is discussed above. In addition, the placement will most likely be a long-term arrangement. The contact sessions may thus serve as a way of maintaining contact between the mother and son so that he is familiar with his roots. This is believed to be important to the development of identity. The purpose of the contact sessions is not to establish a relationship with a view to a future return of the child to the care of his biological mother. The child welfare services must be authorised to supervise the exercise of the right of contact. This is necessary for several reasons, including to limit the number of participants during the sessions.” The minority of the High Court – one of the professional judges – was of the opinion that the contact rights should be fixed at twice a year. 76. The first applicant did not lodge an appeal against the judgment, which thus became legally binding. D. The first applicant ’ s complaint to the County Governor 77. In an undated letter the first applicant complained about the child welfare services to the County Governor ( fylkesmannen ). She alleged that the child welfare services had lied and said that she was retarded; the psychologist appointed by the High Court (see paragraph 61 above) had been partial and should never have been allowed to come into her home; in contact sessions, the first applicant was bullied and harassed by the supervisor and the foster mother if she came alone, and she was not allowed to bring her own parents any more. She stated that one could only wonder how retarded they were, or how low an IQ they had. The whole case, she maintained, had been based on lies. She also alleged that the child welfare services removed a person ’ s capacities ( umyndiggjør ) and gladly made people retarded ( gjør gjerne folk evneveike ) in order to procure children for themselves or their friends. 78. The director ( barnevernleder ) of the municipal child welfare services replied on 22 July 2010 saying that the first applicant and her family were more interested in conflict with the child welfare services than in establishing good and positive contact with X. The first applicant had complained early on about the staff from the child welfare services, who, in return, had met her wish to be assigned a new supervisor, but nothing had changed in the first applicant ’ s attitude. The amount of contact had been increased to three times a week in accordance with the City Court ’ s judgment (see paragraph 54 above), and X had had strong reactions to this. The director of the child welfare services further stated that they understood that the situation was difficult for the first applicant and had offered her help (see, inter alia, paragraph 48 above). With respect to the contact sessions, they had tried several alternatives. They had at first carried out the sessions in a meeting room at their offices, where the supervisor and foster mother could sit at a table some distance away from the first applicant and X, though in a manner that enabled them to intervene if supervision were necessary. The first applicant had complained about this solution. There had then been some sessions in the foster home, but the foster mother had found this difficult because the atmosphere was very bad and they wanted the foster home to be a secure environment for X. Thereafter they had borrowed an apartment designated for purposes such as contact sessions. This had also not suited the first applicant, who had again complained. They had then gone back to having visits at the child welfare services ’ offices, where a new room for such purposes had since been made available. 79. The director of the child welfare services also stated that the foster mother was still present during contact sessions. This had been considered as entirely necessary, as she was the secure carer for X. It had also been considered necessary to have a supervisor present to guide the first applicant. The supervisor ’ s task was also to stop the contact sessions if the first applicant refused guidance. So far, sessions had not been stopped, but the supervisor had tried to tell the first applicant that it was important to focus on X and enjoy being with him, instead of yelling at the child welfare services and the foster mother. 80. In a letter to the first applicant, dated 26 July 2010, the County Governor, following the child welfare services ’ response to their inquiry, informed her that they had no objections to the work of the child welfare services in the case. E. Proceedings to lift the care order or withdraw the first applicant ’ s parental responsibilities for X and authorise his adoption 1. Proceedings before the County Social Welfare Board ( a ) Introduction 81. On 29 April 2011 the first applicant applied to the child welfare services for termination of the care order or, in the alternative, extended contact rights with X. 82. On 13 July 2011 the municipal child welfare services forwarded the request to the County Social Welfare Board. The municipality proposed that it be rejected; that the first applicant ’ s parental responsibilities for X be withdrawn (transferred to the authorities), and that X ’ s foster parents, with whom he had resided since he was taken into care (see paragraph 22 above), be granted permission to adopt him. The identity of X ’ s biological father was still unknown to the authorities. In the alternative, the municipality proposed that the first applicant ’ s contact rights be removed. 83. During a contact session on 6 September 2011 the supervisor noticed that the first applicant was pregnant and asked when the baby was due, to which the first applicant, according to the supervision notes, answered that she thought it was around New Year ’ s Eve. According to the notes, the contact session went well. 84. On 13 September 2011 the first applicant ’ s counsel engaged a specialist in clinical neurology to test her abilities and to map her cognitive capacities. 85. In letters of 14 September and 28 October 2011, in the course of the proceedings before the Board, the municipality asked for further information about the first applicant ’ s husband, in order to be able to make contact with him and talk to him about his future role in the first applicant ’ s life. 86. Meanwhile, on 18 October 2011, the first applicant gave birth to Y. She had married the father of Y in the summer of that year. The new family had moved to a different municipality. When the child welfare services in the first applicant ’ s former municipality became aware that she had given birth to another child, they sent a letter expressing concern to the new municipality, which started an investigation into her parenting abilities. 87. Also on 18 October 2011, the specialist in clinical neurology engaged by the first applicant ’ s counsel (see paragraph 84 above) produced his report. His conclusion read as follows: “Wechsler Adult Intelligence Scale III (WAIS-III) shows an IQ of 86. Standard errors in measurements indicate that, with a 95% probability, she has an IQ of between 82 and 90. The normal range is between 85 and 115. Ability-wise, [ the applicant] is within the lower part of the normal range. In addition she shows considerable learning difficulties that are ... [greater] than what her IQ should indicate [( betydelige lærevansker som er svakere enn hva hennes IQ skulle tilsi )]. These difficulties are considered to be consistent with a cognitive impairment.” In response to a request for follow-up, he wrote to the first applicant ’ s counsel on 27 October 2011 stating as follows : “A general IQ of between 82 and 90 is not in itself a disqualifying factor with respect to having care for children. Care abilities should to a greater extent be examined through observation of the care person and the child, and anamnestic information about other circumstances. Not being an expert in this field, I think that an assessment of crucial factors would include, among other things, the care person ’ s ability for empathy and meeting the child, understanding of the child ’ s needs, ability to interpret signals from the child, and ability to set aside [( utsette )] their own wishes for the benefit of the child ’ s needs. Such an assessment should be made by a qualified psychologist with experience in the field.” 88. On 8 November 2011 the first applicant ’ s counsel sent a copy of a medical journal dated 2 November 2011 to the Board. It appeared from the copy that a doctor had agreed to give evidence by telephone during the upcoming case and that the doctor could not see that there was anything connected with the first applicant ’ s epilepsy or cognition that would indicate that she was not capable of taking care of her child. 89. On 28, 29 and 30 November 2011 the County Social Welfare Board, composed of a lawyer, a psychologist and a lay person, held a hearing at which the first applicant was present together with her legal representative. Twenty-one witnesses were heard. ( b ) The Board ’ s decision 90. On 8 December 2011 the Board decided that the first applicant ’ s parental responsibilities for X should be withdrawn and that X ’ s foster parents should be allowed to adopt him. The Board found that there was nothing in the case to indicate that the first applicant ’ s parenting abilities had improved since the High Court ’ s judgment of 22 April 2010 (see paragraphs 65 - 75 above). Therefore she was still considered incapable of giving X adequate care. Moreover, the Board stated: “In her statement before the County Social Welfare Board, the mother maintained her view that the care order was a conspiracy between the child welfare services, [the parent-child institution] and the foster parents for the purpose of ‘ helping a woman who is unable to have children ’. In the mother ’ s words, it was a question of ‘ an advance order for a child ’. The mother had not realised that she had neglected [X], and stated that she spent most of her time and energy on ‘ the case ’. The reports from the contact sessions between the mother and [X] consistently [( gjennomgående )] show that she is still unable to focus on [X] and what is best for him, but is influenced by her very negative view of the foster mother and of the child welfare services. [The first applicant] has married and had another child this autumn. The psychologist [K.M.] has stated before the Board that he observed good interaction between the mother and child and that the mother takes good care of the child. The Board takes note of this information. In the County Social Welfare Board ’ s opinion, this observation cannot in any case be used as a basis for concluding that the mother has competence as a caregiver for [X]. The County Social Welfare Board finds it reasonable to assume that [X] is a particularly vulnerable child. He experienced serious and life-threatening neglect during the first three weeks of his life. Reference is also made to the fact that there have been many contact sessions with the mother, some of which have been very stressful for [X]. All in all, he has been through a lot. He has lived in the foster home for three years and does not know his biological mother. If [X] were to be returned to the care of his mother, this would require, among other things, a great capacity to empathise with and understand [X] and the problems he would experience, not least in the form of mourning and missing his foster parents. The mother and her family appeared to be completely devoid of any such empathy and understanding. Both the mother and grandmother stated that it would not be a problem, ‘ he just had to be distracted ’, and thus gave the impression of not having sympathy with the boy and therefore also being incapable of providing the psychological care he would need in the event of a return.” 91. In addition, the Board had especially noted the conclusions of the expert M.S. (see paragraph 6 3 above). They had been quoted by the High Court in its judgment of 22 April 2010 (see paragraphs 65 - 75 above). The Board found that this description of the first applicant was still accurate. In any event, it was decisive that X had established such a connection to his foster family that removing him would result in serious and permanent problems for him. 92. The Board further stated: “[X] has lived in the foster home as an equal member of the family for three years. These three years are the boy ’ s whole life. We find it to be substantiated that his primary source of security and sense of belonging is his foster family. He sees the foster parents as his psychological parents. In addition to his foster family, [X] receives good follow-up in kindergarten and from the rest of the foster parents ’ family. We have no doubt that removing [X] from this environment and returning him to his biological mother would lead to considerable and serious problems. Reference is made to the fact that he had already developed considerable problems after one year, when the amount of contact was increased significantly. In our assessment, it is of crucial importance to the boy ’ s development and welfare that he continue to live in the foster home. On this basis the County Social Welfare Board must determine the question of withdrawal of parental responsibilities and, if relevant, consent to adoption. The first and second paragraphs of section 4-20 of the Child Welfare Act state that a decision to withdraw parental responsibilities from the parents can be made, and is a precondition for granting consent to adoption. The condition is that the County Social Welfare Board has made a care order for the child. The Board bases its decision on established case-law allowing for parental responsibilities to be withdrawn from biological parents in order to make an adoption possible. This is the primary objective of the child welfare services ’ proposal to withdraw the mother ’ s parental responsibilities in the present case. The wording of section 4-20 of the Child Welfare Act specifies far stricter conditions for granting consent to adoption than for withdrawing the parents ’ parental responsibilities. However, when the purpose of a decision pursuant to the first paragraph is to open up the possibility for adoption, the grounds that indicate adoption will also constitute the grounds for withdrawal of parental responsibilities. The matter to be determined in this case is thus whether the conditions for granting consent to adoption are met. The third paragraph of section 4-20 of the Child Welfare Act reads as follows: ‘ Consent may be given if (a) it must be regarded as probable that the parents will be permanently unable to provide the child with proper care or the child has become so attached to persons and the environment in which he or she is living that, on the basis of an overall assessment, removing the child may lead to serious problems for him or her, and (b) adoption would be in the child ’ s best interests, and (c) the persons applying for adoption have been the child ’ s foster parents and have shown themselves to be fit to bring up the child as their own, and (d) the conditions for granting an adoption under the Adoption Act are satisfied. ’ The County Social Welfare Board will start by observing that there are good grounds for withdrawing the mother ’ s parental responsibilities for [X], regardless of the issue of adoption. Reference is made to the fact that [X] has lived in the foster home for practically his whole life, and it is therefore most natural that the foster parents make the decisions on his behalf that come with parental responsibilities. The mother ’ s insensitive behaviour, not least online, also indicates that she could cause many problems for him [( ramme ham hardt )] when he becomes old enough to understand. The County Social Welfare Board considers [( legger til grunn )] that the mother will be permanently unable to provide [X] with proper care, and that [X] has become so attached to his foster parents, foster brother and the rest of the family that moving him would lead to serious problems for him. Reference is made to the above discussion. The condition in letter ( a) of [the third paragraph of] section 4-20 of the Child Welfare Act is met. Adoption is a particularly invasive measure in relation to the biological parents and the child. Therefore, particularly weighty reasons are required. Pursuant to Supreme Court case-law, the decision must be based on a concrete assessment, but must also build on general experience from child psychology or child psychiatry. Reference is made in particular to the Supreme Court decision in Rt. 2007 page 561 ff., which refers to a court-appointed expert who had stated that general experience indicated that a foster-home relationship was not the preferable option for long-term placement of children who had come to the foster home before establishing an attachment to their biological parents. In such cases, adoption would be most conducive to the child ’ s development. The judgment stated that considerable importance must be attached to such general, but nuanced experience. The County Social Welfare Board bases its decision [( legger til grunn ) ] on the mother not consenting to [X] being adopted. As shown above, she has a strong, if inappropriate [( uhensiktsmessig )], commitment to having him returned to her care. In the County Social Welfare Board ’ s assessment, consent to an adoption will clearly be in [X] ’ s best interests. The County Social Welfare Board does not believe that returning [X] to his mother ’ s care is an option. This foster-home placement is considered permanent. [X] sees his foster parents as his psychological parents, and they are the only parents he knows. An adoption would give [X] further assurance that he is his foster parents ’ son.” 93. The Board went on to make another reference to the Supreme Court ’ s ( Høyesteretts ) decision in Norsk Retstidende ( Rt. ) 2007, page 561 (see, also, paragraph 125 below) and found that the reasoning underlying the following passage from that judgment – reiterated in Aune v. Norway (no. 52502/07, § 37, 28 October 2010) – was also pertinent in the present case: “A decision that he should remain a foster child would tell him that the people with whom he has always lived and who are his parents and with whom he established his earliest ties and sense of belonging should remain under the control of the child welfare services – the public authorities – and that they are not viewed by society as his true parents but rather as foster parents under an agreement that can be terminated. ...” The Board considered these general reflections to be an accurate description of X ’ s situation as well. An adoption would be in X ’ s best interests. The condition in letter (b) of the third paragraph of section 4-20 of the Child Welfare Act (see paragraph 122 below) was deemed to be met. 94. Furthermore, the foster parents had been X ’ s emergency foster parents and later his foster parents since his emergency placement when he was three weeks old. The Board stated that it had been documented that they had provided X with excellent care and that the attachment between them and X was good and close. The foster parents had a strong wish to adopt X. In the Board ’ s opinion, the foster parents had demonstrated that they were suited to raise X as their own child. The conditions set out in letter (c) of the third paragraph of section 4-20 of the Child Welfare Act Section 4-20 (see paragraph 122 below) were deemed to be met. 95. In conclusion, the adoption would be in X ’ s best interests. The Board took Article 8 of the Convention into consideration when making its decision. 2. Proceedings before the City Court ( a ) Introduction 96. On 19 December 2011 the first applicant appealed against the decision, claiming that the Board had made an incorrect evaluation of the evidence when deciding that she was unable to give X adequate care. She considered that it would be in X ’ s best interests to be returned to her and argued that her situation and her caring skills had changed. She was now married and the couple had a baby. She submitted that the child welfare services in their new municipality assisted them in taking care of the baby. Moreover, in her view, removing X from the foster home would cause him problems only in the short term; no long-term problems could be expected. X had only stayed in the foster home for a short time, and it had not been the foster parents who had expressed a wish to adopt the child but the child welfare services who had taken that initiative. The first applicant also claimed that the visits between her and X had worked satisfactorily; if the child welfare services considered the contact sessions to be inadequate it was for them, as the stronger party, to take action to ensure that they be made satisfactory. 97. The municipality opposed the appeal and submitted in their response that X, who was then three years and four months old and had lived in the foster home since he was three weeks old, had become attached to the foster home. They maintained that it would cause serious and long-lasting problems for him if he were returned at the present time. He had no recollection of the period when he had been in his mother ’ s care. In the municipality ’ s view, the first applicant ’ s ability to care for X had not changed since the High Court ’ s judgment of 22 April 2010. The visits between X and the first applicant had not worked well. She had had outbursts during the visits and had left before the time was up. Afterwards X had reacted negatively. The first applicant and her mother had manifested a very negative attitude towards the child welfare services. The first applicant had claimed that the child welfare services assisted them in taking care of the baby, whereas the truth was that they had denied the child welfare services access to their home and, accordingly, no assistance measures had been implemented. It had, admittedly, been the child welfare services that had taken the initiative to petition for adoption, but this was their duty in a case such as the present. It was better for X to be offered the firm attachment to the foster home that an adoption would give him. The municipality stressed that it was not the first applicant ’ s epilepsy or her IQ that gave reason to take measures, but her immaturity and actual lack of caring skills. The psychologist, K.M., engaged by the first applicant ( see paragraph 98 below ) should not be allowed to give evidence. He had videotaped a contact session without the parties ’ agreement; refused to send the video to the child welfare services; had never provided anything in writing, nor anything that had been quality-checked such as was the ordinary procedure for expert reports; the municipality had already reported him to the health supervision authorities and the Ethics Council of the Psychologists ’ Association. 98. On 22 February 2012 the City Court, composed of one professional judge, one psychologist and one lay person, in accordance with section 36-4 of the Dispute Act (see paragraph 133 below), upheld the decision after having held a hearing which lasted from 13 to 15 February 2012 and during which twenty-one witnesses were heard. Among the witnesses called by the child welfare services were the persons responsible for supervision of the foster home and the contact sessions, S.H. from the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic, expert psychologists B.S. and M.S. (see, inter alia, paragraphs 58, 61, 62 and 63 above) and the family consultant from the parent-child institution (see, for example, paragraph 24 above). Among the witnesses called by the first applicant were members of her family, her husband and members of his family, the medical director at the hospital where the first applicant had undergone surgery in 2005 (see paragraph 72 above) and specialist in psychology K.M. (see paragraph 97 above ). The first applicant was present together with her legal aid counsel. ( b ) The City Court ’ s reasoning regarding whether X ’ s public care could be discontinued 99. As a preliminary point in its judgment the City Court stated that during the hearing some time had been spent shedding light on the circumstances existing prior to the decision ordering X to be taken into care. The City Court stated that it would only examine the situation prior to the placement decision in so far as necessary to assess the situation at the time of its judgment appropriately. 100. The City Court went on to note that the first applicant ’ s situation in some areas had improved during the last year. She had married in August 2011, her husband had a permanent job and they had a daughter, Y. It also noted that the child welfare services in the couple ’ s current municipality were conducting an ongoing inquiry concerning the mother ’ s ability to care for Y. A staff member of the child welfare services in that new municipality had testified at the oral hearing, stating that they had not received any reports of concern other than the one from the child welfare services in the first applicant ’ s former municipality. As part of their inquiry they had made observations at the first applicant ’ s home. They had observed many good aspects but also that the parents might need some help with routines and structure. The City Court found that this indicated that the child welfare services in the municipality to which the first applicant had moved considered that the parents could give Y adequate care if assisted by the child welfare services. Y was not a child with any special care needs. 101. However, on the basis of the evidence the situation was different with regard to X, whom several experts had described as a vulnerable child. The City Court referred in particular to a statement from a professional at the Children ’ s and Young People ’ s Psychiatric Out-Patient Clinic explaining that, as late as December 2011, X was easily stressed and needed a lot of quiet, security and support. If his emotional development in the future were to be sound, the carer would have to be aware of that and take it into account. When the first applicant gave evidence in court, she had clearly shown that she did not realise what challenges she would face if X were to be moved from the foster home. She could not see his vulnerability, her primary concern being that he should grow up “where he belonged”. The first applicant believed that returning him would be unproblematic and still did not understand why the child welfare services had had to intervene when he was placed in the emergency foster home. She had not wished to say anything about how she thought X was developing in the foster home. In the City Court ’ s view, the first applicant would not be sufficiently able to see or understand X ’ s special care needs, and if those needs were not met, there would be a considerable risk of abnormal development. 102. The City Court also took account of how the foster parents and supervisor had described X ’ s emotional reactions after contact sessions with his mother, namely, his inconsolable crying and need for a lot of sleep. During the contact sessions X had repeatedly resisted contact with the first applicant and, as the sessions had progressed, reacted with what had been described as resignation. The City Court considered that a possible reason for that was that the boy was vulnerable to inexpedient interaction and information that was not adapted to his age and functioning. The first applicant ’ s emotional outbursts in situations during the contact sessions, for example when X had sought out his foster mother and called her “Mummy”, were seen as potentially frightening ( skremmende ) and not conducive to X ’ s sound development. 103. The City Court held that the presentation of evidence had “clearly shown” that the “fundamental limitations” ( grunnleggende begrensningene ) that had existed at the time of the High Court ’ s judgment still existed. Nothing had emerged during the City Court ’ s consideration of the case to indicate that the first applicant had developed a more positive attitude to the child welfare services or to the foster mother, beyond a statement made by her to the extent that she was willing to cooperate. She had snubbed the foster mother when she had said hello during the contact sessions and had never asked for information about X. The first applicant had left in frustration forty minutes before the last visit had been scheduled to end. Everyone who had been present during the contact sessions had described the atmosphere as unpleasant. The City Court considered that one possible reason why the first applicant ’ s competence at contact sessions had not improved was that she struggled so much with her own feelings and with missing X that it made her incapable of considering the child ’ s perspective and protecting him from her own emotional outbursts. An improvement was contingent upon her understanding X and his needs and on her being willing to work on herself and her own weaknesses. The first applicant had not shown any positive developments in her competence in contact situations throughout the three years she had had rights of contact. The fact that her parents had a remarkably negative attitude to the municipal child welfare services did not make it any easier for her. 104. The first applicant had claimed in court that she was a victim of injustice and that she would fight until X was returned to her. To shed light on her own situation, she had chosen to post her story on the Internet in June 2011 with a photograph of herself and X. In that article and several comments posted during the autumn of 2011, she had made serious accusations against the child welfare services and the foster parents – accusations which she had admitted in court were untrue. The first applicant did not consider that public exposure and repeated legal proceedings could be harmful for the child in the long term. 105. The City Court noted that the psychologist K.M. (see paragraphs 97-98 above), who had examined and treated the first applicant, had testified that she did not meet the criteria for any psychiatric diagnosis. He had counselled her in connection with the trauma inflicted on her by having her child taken away. The goal of the treatment had been to make the first applicant feel like a good mother. He believed that the previous assessments of the first applicant ’ s ability to provide care had at that time been incorrect, and argued before the City Court that the best outcome for X would be to be returned to his biological mother. However, the City Court stated that the psychologist K.M. ’ s arguments had been based on research conducted in the 1960s, and found them to be incompatible with recent infant research. It noted that the other experts who had testified in court, including the psychologists B.S. and M.S ., had advised against returning X to his mother, as this would be very harmful for him. 106. In conclusion thus far, the City Court agreed with the County Social Welfare Board that the first applicant had not changed in such a way as to indicate that it was highly probable that she would be able to provide X with proper care. It endorsed the Board ’ s grounds, holding that the first applicant ’ s clear limitations as a carer could not be mitigated by an adapted transitional scheme, assistance measures or support from her network. It did not find reason to consider other arguments regarding her ability to provide care in more detail, as returning X to her was in any case not an option owing to the serious problems it would cause him to be moved from the foster home. The City Court agreed at this point with the Board in its finding that X had developed such an attachment to his foster parents, his foster brother and the general foster home environment that it would lead to serious problems if he had to move. X ’ s primary security and sense of belonging were in the foster home and he perceived the foster parents as his psychological parents. On those grounds the care order could not be revoked. ( c ) The City Court ’ s reasoning regarding whether parental responsibilities for X should be withdrawn and consent to his adoption given 107. Turning to the issues of withdrawal of parental responsibilities and consent to adoption, the City Court stated at the outset that where a care order had been issued, it was in principle sufficient for removal of parental responsibilities that this be in the child ’ s best interests. At the same time, it had been emphasised in several Supreme Court judgments that removal of parental responsibilities was a very invasive decision and that therefore strong reasons were required for making such a decision (see, inter alia, paragraph 125 below). The requirements in respect of adoption were even more stringent. However, the questions of withdrawal of parental responsibilities and consent to adoption had to be seen in conjunction, since the primary reason for withdrawing parental responsibilities would be to facilitate adoption. The court also took into consideration that if the first applicant retained her parental responsibilities, she might engage in conflicts in the future about the rights that such responsibility entailed, such as exposing the child on the Internet. 108. The City Court went on to declare that adoption could only be granted if the four conditions in the third paragraph of section 4-20 of the Child Welfare Act were met (see paragraph 122 below), and endorsed the Board ’ s grounds for finding that such was the case regarding the criteria in letters (a), namely that it had to be regarded as probable that the first applicant would be permanently unable to provide X with proper care or that X had become so attached to his foster home and the environment there that, on the basis of an overall assessment, removing him could lead to serious problems for him; (c), namely that the persons applying for adoption had been X ’ s foster parents and had shown themselves fit to bring him up as their own child; and (d), namely that the conditions for granting an adoption under the Adoption Act (see paragraph 132 below) were satisfied; as to letter (d), further documents had also been submitted to the court. In the present case the decisive factor was therefore whether adoption was in X ’ s best interests under letter (b), and whether consent for adoption should be given on the basis of an overall assessment. Regarding that assessment, several Supreme Court judgments had stated that strong reasons must exist for consenting to adoption against the will of a biological parent. There must be a high degree of certainty that adoption would be in the child ’ s best interests. It was also clear that the decision must be based not only on a concrete assessment, but also on general experience from child-psychology research. Reference was made to the Supreme Court ’ s judgment in Rt. 2007, page 561 (see paragraph 125 below). 109. Applying the general principles to the instant case, the City Court first noted that X was at that time three and a half years old and had lived in his foster home since he was three weeks old. His fundamental attachment in the social and psychological sense was to his foster parents, and it would in any event be a long-term placement. X was moreover a vulnerable child, and adoption would help to strengthen his sense of belonging with his foster parents, whom he regarded as his parents. It was particularly important to a child ’ s development to experience a secure and sound attachment to its psychological parents. Adoption would give X a sense of belonging and security in the years ahead for longer than the period a foster-home relationship would last. Practical considerations also indicated that persons who had care and control of a child and who in reality functioned as its parents should carry out the functions that derived from parental responsibilities. 110. The City Court noted that adoption meant that the legal ties to the biological family were severed. In its opinion, X, despite spending the first three weeks of his life with his mother and having many contact sessions, had not bonded psychologically with her. That had remained the case even though he had been told at a later stage that the first applicant had given birth to him. 111. Furthermore, the court took account of the fact that even if no further contact sessions were organised, the foster parents had taken a positive view of letting X contact his biological parent if he so wished. 112. Based on an overall assessment, the City Court found that it would be in X ’ s best interests for the first applicant ’ s parental responsibilities to be withdrawn and for the foster parents to be allowed to adopt him. The court believed that particularly weighty reasons existed for consenting to adoption in the present case. 113. The City Court stated, lastly, that since it had decided that X should be adopted, it was unable to decide on contact rights for the first applicant, since that question would be up to the foster parents to decide. It mentioned that section 4-20a of the Child Welfare Act provided a legal basis for determining rights to contact subsequent to adoption (see paragraph 122 below, where that provision is reiterated, and paragraph 128 below, on the “open adoption” system). The City Court was not competent, however, to examine or determine such rights since its competence was dependent on a party to the case having made a request to that effect. In the instant case, neither of the parties had done so. 3. Proceedings before the High Court and the Supreme Court 114. On 14 March 2012 the first applicant, through her counsel, appealed against the judgment, claiming that the City Court had evaluated the evidence incorrectly when concluding that the first applicant was permanently unable to care for X. Counsel stated that the High Court should appoint an expert to assess the first applicant ’ s husband ’ s help to mother and child, and the first applicant ’ s caring skills at the time. In response to a letter from the High Court, dated 16 March 2012, counsel also argued that the City Court should have obtained an assessment by an expert witness concerning her and her husband ’ s ability to provide adequate care. 115. In their response, dated 26 April 2012, to the first applicant ’ s arguments that an expert assessment was necessary in the light of her new situation, the municipality stated, inter alia, that they had made several requests to be allowed to get to know the first applicant ’ s husband (see, for example, paragraph 85 above), and that the first applicant had consistently chosen to disregard those requests. Since the child welfare services responsible for X did not have any insights into the family ’ s situation in their new municipality, they could only rely on the information they had received from the child welfare services in that municipality, from which they could not infer that the first applicant could take care of X. 116. On 12 June 2012 the first applicant, who had then instructed new counsel, submitted to the High Court a statement from the child welfare services in her new municipality. It emerged from the statement, dated 21 March 2012, that those child welfare services had visited the family five times, each time for one and a half hours. They considered that the family needed assistance in the form of guidance with respect to interaction with their baby, which they could obtain from the local “baby team” ( spedbarnsteamet ) as well as a social worker ( miljøterapeut ) in the home, who could help with routines, structure and cleanliness. The first applicant ’ s counsel also argued that the foster mother ’ s presence during the contact sessions had disturbed ( virket forstyrrende på ) their implementation. 117. On 23 August 2012 counsel for the first applicant submitted a report from the child welfare services in the first applicant ’ s new municipality, dated 5 June 2012. In the report it was stated, inter alia, that the parents had stated early on that they would accept advice and guidance if the child welfare services so recommended. The mother had stated that she had had a bad experience with the “baby team”, but that she could accept help from them if another person on the team was appointed to be her contact. In the report it was further stated that the child welfare services considered that it had observed two parents who showed that they wanted the best for their child. The first applicant played with the child, talked to her and engaged actively with her. On the basis of all the information contained in the observations, the child welfare services considered that the parents had to work on routines, cleanliness and involvement with the child. The parents accepted that a social worker be assigned to help them in the home. 118. In the meantime, on 22 August 2012, the High Court had decided not to grant leave to appeal because the conditions in section 36-10 of the Dispute Act (see paragraph 133 below) had not been met. The High Court stated that the case did not raise any new legal issues of importance for the uniform application of the law. With regard to whether new information had emerged, the court noted that the assessment dated 21 March 2012 had been made by, inter alia, a person who had testified before the City Court and that the document would not change the outcome of the case. The first applicant ’ s caring skills had been thoroughly examined in connection with the Board ’ s processing of the case and no new information had emerged that indicated changes in that respect. Moreover, the City Court ’ s reasons were convincing and the High Court observed that the first applicant had not asked for an expert witness to be heard in the City Court and had not given any reasons as to why it was necessary to appoint an expert before the High Court. As had just been mentioned, there was no new information that indicated any changes in her caring skills. Thus there were no serious flaws in the City Court ’ s judgment or procedure and no reasons for granting leave to appeal. 119. On 24 September 2012 the first applicant appealed against the decision to the Supreme Court. She submitted an assessment concerning the experience of the social worker in respect of her work with the family and their care for Y (see paragraph 117 above), dated 14 August 2012. In that document it was concluded that a positive development had started and that the social worker should continue to assist the family. The first applicant argued that the City Court had relied more on older documents than on the circumstances at the time of its judgment and had disregarded the fact that its judgment would have the effect of depriving Y of contact with X. She further repeated her argument that the foster mother ’ s presence had disturbed the contact sessions (see paragraph 116 above) and maintained that the child welfare services had not properly organised the sessions. 120. In its reply of 4 October 2012 the municipality stated, inter alia, that it was positive that the first applicant and her husband had managed to avail themselves of the guidance received from the social worker, but that X was a vulnerable child whereas Y did not face similar challenges. As to the first applicant ’ s argument that the City Court had not based its decision on the circumstances at the time of its judgment, the municipality pointed to the fact that five out of the eight witnesses they had called, and all the witnesses called by the first applicant, had given evidence before the City Court on the circumstances as they were at that time. They further stated that Y would not be deprived of contact with X as long as the first applicant accepted X ’ s foster home and contributed to making it a good experience for the children. As to Y ’ s father, it was argued that it had emerged from his testimony before the Board and City Court that he knew little about X ’ s placement in care and about the challenges surrounding the contact sessions. The municipality also submitted that they would argue before the Supreme Court that X ’ s right to respect for his family life was also protected by Article 8 of the Convention and that his need for stability in the foster home and good care would be best ensured if he were adopted. 121. On 15 October 2012 the Supreme Court Appeals Board ( Høyesteretts ankeutvalg ) dismissed the first applicant ’ s appeal against the High Court ’ s decision. | This case concerned the Norwegian authorities’ decision to remove a mother’s parental authority and let foster parents adopt her son. The applicants – the mother and her son – complained about the domestic authorities’ decision to remove the mother’s parental authority and let the child’s foster parents adopt him. |
503 | Unavailability of widows’ allowances to widowers | 6. The applicant married in July 1994. The applicant and his wife had two children, born in 1989 and 1992. The applicant’s wife died of cancer on 11 August 1997, aged 28 years. The applicant is the administrator of his late wife’s estate. 7. The applicant’s wife was employed as a shop assistant for four years and contributed about half of their joint income. She paid full social security contributions as an employed earner, except when she gave up work to care for their children and was subsequently entitled to contribution credits as a person who was incapable of work. The applicant gave up work to nurse his wife and care for their children in January 1997. 8. On 8 September 1997 the applicant applied to the Benefits Agency for the payment of social security benefits. He applied for benefits equivalent to those to which a widow, whose husband had died in similar circumstances to those of Mrs Sawden, would have been entitled, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992 (“the 1992 Act”). 9. By a letter dated 24 September 1997, the Benefits Agency informed the applicant that he was not entitled to any of the money he had claimed. The applicant lodged an unsuccessful appeal against this decision on 2 October 1997. 10. The applicant wished to increase his income and continue to care for his children by working part time. However, under Income Support Rules any earnings over GBP 15 per week would be deducted from his benefit. His family’s standard of living was thus effectively fixed at a low level until circumstances changed to allow him to return to full time work. If the applicant had been entitled to receive social security benefits equivalent to those to which a woman in similar circumstance to himself would have been entitled, he could have worked part time and would have received benefits of around GBP 85 per week. He would also have received a one off Widow’s Payment of GBP 1,000. 11. Under the Welfare Reform and Pensions Act 1999 bereavement benefits became available to both men and women as of 9 April 2001. | The applicant’s wife died in August 1997, leaving him as the administrator of her estate. One month later the applicant applied for social security benefits equivalent to those to which a widow – whose husband had died in similar circumstances to his wife – would have been entitled, namely a Widow’s Payment and a Widowed Mother’s Allowance, payable under the Social Security and Benefits Act 1992. He was informed that his claim was invalid because the regulations governing the payment of widows’ benefits were specific to women. He lodged an unsuccessful appeal against this decision. In April 2001 the Welfare Reform and Pensions Act 1999 came into force, making bereavement benefits available to both men and women. Before the Court, the applicant complained that British social security and tax legislation had discriminated against him on grounds of sex. |
501 | Pension scheme | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant is a Czech national born in 1946 who lives in Vysoké Mýto (the Czech Republic ). 6. The applicant was married from 1971 until 1998, when he divorced. On 28 May 1998 the applicant applied for custody of two of his four children, born in 1982 and 1985, maintaining that since August 1997 he and his wife had not lived together and that he cared for the two minor children himself. In a judgment of 16 July 1998 the Ústí nad Orlicí District Court awarded the applicant custody of the two children. 7. On 14 November 2003 the Czech Social Security Administration ( Česká správa sociálního zabezpečení ) dismissed an application by the applicant for a retirement pension as he had not attained the pensionable age required by section 32 of the Pension Insurance Act, which was, in his case, sixty-one years and ten months. 8. The applicant challenged the administrative decision before the Hradec Králové Regional Court ( Krajský soud ), arguing that given the fact that he had cared for two children, he was entitled to retire at the age of fifty-seven and had therefore reached the pensionable age. 9. On 1 December 2004 the Regional Court stayed the proceedings in the applicant's case pending the outcome of the proceedings before the Constitutional Court ( Ústavní soud ), which was called upon to review the constitutionality of section 32 of the Pension Insurance Act in another case (no. Pl. ÚS 53/2004) brought before it by the Supreme Administrative Court ( Nejvyšší správní soud ). The Hradec Králové Regional Court joined the proceedings in that case as an intervening party. 10. In judgment no. Pl. ÚS 53/2004 of 16 October 2007 the Constitutional Court dismissed the Supreme Administrative Court's petition to repeal section 32 of the Pension Insurance Act, finding that it was not discriminatory and was therefore compatible with Article 1 and Article 3 § 1, in conjunction with Article 30 § 1, of the Charter of Fundamental Rights and Freedoms. 11. On 12 December 2007 the Regional Court dismissed the applicant's action, referring to the Constitutional Court's judgment no. Pl. ÚS 53/2004. 12. By a judgment of 13 June 2008 the Supreme Administrative Court dismissed a cassation appeal by the applicant, relying on the aforesaid judgment of the Constitutional Court. 13. Subsequently, the applicant lodged a constitutional appeal in which he alleged, inter alia, a violation of Article 14 of the Convention and Article 1 of Protocol No. 1. 14. On 30 October 2008 the Constitutional Court rejected the constitutional appeal as manifestly ill-founded, emphasising, in particular, the discretion afforded to the legislature to implement preferential treatment, the objective and reasonable aim pursued by this preferential treatment of women and the relationship of proportionality between the means employed and the aim pursued. | This case concerned the current pension scheme in the Czech Republic whereby women and men who care for children were eligible for a pension at different ages. Following his divorce, the applicant obtained custody of his two minor children. In 2003 he sought to retire at the age of 57, but his request was refused on the grounds that he had not attained the pensionable age, which at the time was 60 for men. The age for women was 57 or lower, depending on the number of children they had raised. The applicant appealed on the grounds that the fact that he had raised two children should have been taken into account in calculating his retirement age, but his appeal was dismissed after the Constitutional Court ruled in separate proceedings that the legislation was not incompatible with the Constitution. He complained in particular that he has been denied a pension at an age when a woman in his position would have been able to receive it. |
981 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1964 and lives in Kyiv. He is a former Minister of the Interior and the leader of the opposition party Narodna Samooborona. A. Institution of criminal proceedings against the applicant 8. On 2 November 2010 the General Prosecutor’s Office (“the GPO”) instituted criminal proceedings against the applicant and another individual, Mr P., under Article 191 § 3 of the Criminal Code. The GPO asserted that while he was Minister of the Interior from December 2007 to January 2010 the applicant had unlawfully arranged for different work-related benefits for his driver – the aforementioned Mr P. On the same date, the applicant gave a written undertaking not to abscond to the investigator. 9. On 5 November 2010 the applicant was formally charged. 10. During the pre-trial investigation, the applicant appeared for all investigating activities and the investigator had no complaints about his cooperation. 11. On 11 December 2010 the GPO instituted another criminal case against the applicant for exceeding his official powers under Article 365 § 3 of the Criminal Code on the grounds that the applicant had arranged for the allocation of a one-room apartment to his driver Mr P. 12. The two criminal cases were joined together (hereinafter – “the first criminal case”). 13. On 13 December 2010 the GPO completed the investigation in the case and formally indicted the applicant on both counts, having, however, reclassified his actions specified in the first charge under Article 191 § 5 of the Criminal Code. The applicant was summoned to appear before the investigator in order to study the criminal case file against him. B. Study of the case-file materials 1. Applicant’s version of events 14. On 15 December 2010 the applicant was given only the minority of the criminal case file for familiarisation, being informed that the rest of the materials were not available. The investigator summoned the applicant to study the case file on 16 and 17 December 2010. 15. On 17 December 2010 the applicant and his lawyer appeared before the investigator to study the case file. However, the investigator did not provide them with the complete file, referring to the fact that some materials were still with the Pechersky Court. The investigator served on the applicant a summons to appear on 20 through 24 December 2010 in order that his familiarisation with the case file be continued. 16. On 20 and 21 December 2010 the case file materials were stated to be not ready, despite the applicant’s desire to acquaint himself with them. 17. On 22 December 2010 the investigator informed the applicant that he had decided that all accused and their lawyers would be given only one volume of the file at a time, and the next volume would be given only after all of them had completed their familiarisation with the previous one. He added that the copy of the list of materials of each volume would be given after such familiarisation. On the same date, the applicant’s representative asked to be allowed to make digital photos of the materials in the case file. His request was rejected. 18. On 22 and 23 December 2010 the applicant and his lawyer were acquainted with the materials in the case file. 19. On 24 December 2010 the applicant’s representative was busy representing a client in another set of proceedings, of which he had informed the investigator in advance. 2. The Government’s version of events 20. On 8 December 2010 the applicant was served with a summons to appear before the investigator on 14 December 2010. 21. On 14, 16, 17, 20 and 24 December 2010 he failed to appear to study the case file. 22. On 15, 21, 22 and 23 December 2010 the applicant came to the GPO to study the case file. 23. On 20 December 2010 the investigator issued a resolution establishing the order of studying the case file. The applicant was notified of this order on 21 December 2010. C. Other events 24. On 18 December 2010 the weekly newspaper Zerkalo Nedeli (Mirror Weekly) published an interview with the applicant entitled “ Yuriy Lutsenko: I try to think less about the bad things ... ”. In this interview, he denied all accusations against him. Being asked about statements made by his former deputy minister, Mr K., the applicant said: “For reasons unknown to me K. [...] says that I allegedly called him to my office, gave him a resolution prepared for his signature and told him that he should sign it. How is this confirmed? Only by the words of a man who is frightened by something... What confirmed his words? Nothing. All charges are based not on documents that I signed, but on oral instructions which I allegedly gave. Why in this case I did not give such oral instructions to my other subordinates and on other occasions is a mystery...” 25. On 24 December 2010 GPO investigator V. instituted another set of criminal proceedings against the applicant for abuse of office under Article 364 § 3 of the Criminal Code (hereinafter – “the second criminal case”). The applicant was suspected of unlawful authorisation of search and seizure activities against an individual. The same day the investigation in the first criminal case was resumed. Five days later, the two cases were joined. 26. On 25 December 2010 the same investigator prepared an application to the Pechersky Court, seeking to have the preventive measure applied to the applicant in respect of the first criminal case changed from an undertaking not to abscond to pre-trial detention. The investigator stated that the applicant had not complied with his procedural decisions and had attempted to avoid participating in the investigation by, in particular, systematically failing to appear before the investigator at the fixed time. He further noted that the investigation had been completed on 13 December 2010 and that the applicant had been indicted. On 14 December 2010, being summoned to the GPO’s premises in order to study the case-file, the applicant had failed to do so and, according to Internet sources, had held a press conference instead. According to the investigator, during the press conference the applicant: “ ... with a view to avoiding criminal responsibility for crimes committed, distorting public opinion about crimes committed by him, discrediting the prosecuting authorities and influencing the upcoming trial on the merits, gave comments regarding the charges against him. Thus, Y. Lutsenko disclosed materials of the pre-trial investigation, distorted information about his case known to him, tried to impose his views on society as to his alleged innocence and to blame others for the crime committed, although during the entire time of the pre-trial investigation Y. Lutsenko refused to give any testimony on the merits of the charge against him.” The investigator further noted in his application that the applicant had failed to study the case file in an appropriate manner. According to him, on 15 December 2010 the applicant was given the case-file materials and was informed that he was able to study the case file everyday from 9 a.m. to 6 p.m. However, on that date he only studied the case-file materials for five minutes. On 16, 17, 20 and 24 December 2010 the applicant failed to appear at all and on 21, 22 and 23 December the applicant only studied the case file for around two hours. Moreover, the applicant continued giving interviews in order to distort public opinion and to influence the investigation and trial. The investigator concluded that the applicant should be detained because he had committed a serious crime, had impeded the investigation by purposefully delaying the investigation, had constantly avoided appearing before the investigator, had not complied with the investigator’s decisions and had put pressure on witnesses by discrediting them, therefore seeking to avoid criminal liability. 27. On the same date the First Deputy Prosecutor General approved the above application for the applicant’s arrest. D. The applicant’s arrest and detention 28. On Sunday 26 December 2010 at 12.45 a.m. the applicant was arrested near his house by officers of the Security Service and the GPO investigator in the framework of the second criminal case. 29. According to the applicant, during his arrest, he was not informed of the reasons for his arrest and was not given a copy of the charge sheet. The investigator also refused to give a copy of the charge sheet to the applicant’s representative. According to the Government, the applicant was served with a copy of the decision to institute the second criminal case against him, but refused to sign it. 30. The record of the applicant’s arrest indicated that witnesses had pointed to the applicant as a person who had committed a crime and that his detention was necessary in order to prevent him from avoiding participating in or jeopardising the investigation, to exclude the possibility of continuation of criminal activities by him and to ensure his isolation from society. It was further indicated that there was other (unspecified) information that gave grounds to suspect the applicant of committing a crime. The arrest record also contained reference to Article 364 § 3 of the Criminal Code. According to the record, the applicant refused to sign it. 31. On 27 December 2010 the applicant was taken to the Pechersky Court. His lawyer found out about the hearing twenty minutes prior to its start. At the beginning of the hearing, the applicant’s lawyer asked for the media to be present, given that the applicant’s arrest involved a matter of significant public interest. The prosecutor objected to this request on the grounds that the proceedings did not concern the applicant’s arrest in the second criminal case, but rather the GPO’s application in relation to the first criminal case to alter the preventive measure concerning the applicant from a written obligation not to abscond to that of being held in custody. According to the applicant, only at this point did he and his lawyer find out that the hearing concerned the GPO’s application to change the preventive measure affecting the applicant and not the grounds for his arrest. The applicant complained of irregularities in his arrest, but the prosecutor repeatedly stressed that his arrest was not under examination at the hearing. The applicant and his lawyer then asked the court to adjourn the hearing in order to study the GPO’s application and its supporting materials and to present documents concerning the applicant’s personal situation. The court rejected the request as unsubstantiated. It noted in particular that the applicant had already explained his personal situation and that nobody had contested its veracity. 32. The court allowed the application and ordered the applicant’s detention, accepting the GPO’s reasoning and also finding that there were no personal circumstances pertaining to the applicant that would prevent his being held in custody, that the applicant had sought to evade investigative actions and decisions of the investigator, that he was accused of a crime punishable by imprisonment from seven to twelve [1] years, that he had not admitted his guilt and had refused to make a statement, and that he was capable of influencing the investigation and putting pressure on the witnesses, either personally or through others. The court further rejected written request by seven Members of Parliament for the applicant’s release on bail on their guarantee. 33. The applicant’s lawyer appealed against the decision of 27 December 2010 to the Kyiv City Court of Appeal, considering it unfounded. In his appeal, he claimed, inter alia, that the applicant had not violated his obligation not to abscond, that studying the case file was the applicant’s right and not an obligation, and that the investigator had not given him all the materials in the case file and had knowingly restricted his right of access to the case file. The lawyer further stated that he and his client had not known the grounds for arrest well in advance of the hearing and that the court had refused to postpone the hearing, having put them, therefore, in a disadvantageous position, in violation of the principle of equality of arms. He complained that there was no evidence or information proving that the applicant would seek to evade the investigation or jeopardise it. The lawyer also pointed out that the first-instance court had referred to the fact that the applicant had refused to admit his guilt and to make a statement as grounds for his arrest, thereby violating the applicant’s constitutional rights. 34. On 5 January 2011 the Kyiv City Court of Appeal rejected the appeal and upheld the decision of the first-instance court. It rejected the applicant’s complaints as being unsupported by the case-file materials. It also rejected written request by twenty nine Members of Parliament, supported by the Ukrainian Ombudsman, for the applicant’s release on bail on their guarantee. 35. On 16 February 2011 the Pechersky Court prolonged the applicant’s detention up to four months. This decision was upheld by the Kyiv Court of Appeal. 36. On 21 April 2011 the Kyiv City Court of Appeal prolonged the applicant’s detention for up to five months. It noted that despite the fact that the applicant had completed the study of the case-file materials, there were still investigative actions to be conducted with the applicant’s co-defendant, Mr P., and the lawyers. It further noted that there were no grounds to change the preventive measure applied to the applicant, taking into account the gravity of the charges against him, his family status and state of health. 37. On 23 May 2011 the Pechersky Court upheld the applicant’s detention pending trial without fixing any deadline. 38. On 27 February 2012 the applicant was found guilty and sentenced to four years’ imprisonment and confiscation of property. 39. On 16 May 2012 the Kyiv City Court of Appeal upheld the judgment of the first instance court. The applicant appealed in cassation and these proceedings are still pending. I. whereas a preliminary report of the Danish Helsinki Committee for Human Rights on the Lutsenko and Korniychuk trials has listed massive violations of the European Convention on Human Rights... N. whereas the EU continues to emphasise the need for respect to be shown for the rule of law, incorporating fair, impartial and independent legal processes, while avoiding the danger of giving rise to any perception that judicial measures are being used selectively; whereas the EU considers these principles especially important in a country which aspires to enter into a deeper contractual relationship based on a political association, 1. Stresses the importance of ensuring the utmost transparency in investigations, prosecutions and trials, and warns against any use of criminal law as a tool to achieve political ends; 2. Is concerned about the increase in selective prosecution of figures from the political opposition in Ukraine as well as the disproportionality of measures applied, particularly in the cases of Ms Tymoshenko and Mr Lutsenko, former Interior Minister, and notes that Mr Lutsenko has been in custody since 26 December 2010; expresses its support for the Ukrainian Human Rights Commissioner, Nina Karpachova, who has asked the Ukrainian Prosecutor General to consider the possibility of applying preventive measures that do not involve detention... 4. Stresses that ongoing investigations of prominent Ukrainian political leaders should not preclude them from actively participating in the political life of the country, meeting voters and travelling to international meetings; calls, therefore, on the Ukrainian authorities to lift the travel ban, both domestically and internationally, on Yulia Tymoshenko and other key political figures...” 3. A Freedom House Report on the State of Democracy and Human Rights in Ukraine 47. In April 2011, Freedom House issued the above report under the title Sounding the Alarm: Protecting Democracy in Ukraine. The relevant extracts from the report read as follows: “ Corruption ... the government’s anticorruption campaign lacks credibility. Authorities point to the prosecution of former prime minister Tymoshenko and former interior minister Yuriy Lutsenko as a signal that corruption will not be tolerated and that politicians are not above the law. However, these cases are not focused on charges of personal enrichment, but rather on administrative abuses. The government is correct that the prosecutions send a strong signal, but that signal is actually a warning to other would-be opposition figures not to challenge the authorities... Judiciary The Yanukovych government has made judicial reform one of its top priorities. Much is at stake, as one of the most serious accusations leveled against the administration is that it is using the justice system—and specifically the prosecutor general’s office and the SBU—to punish political opponents. Arguably no other issue has generated as much attention and criticism from inside Ukraine and from the international community than this perception of selective prosecutions, especially against former prime minister Tymoshenko and her associates. The level of concern has led the U.S. and other Western embassies, as well as officials in Brussels, to issue public statements highlighting this issue. Tymoshenko’s is the most prominent case, but charges have been brought against nearly a dozen other top officials from her government, including former interior minister Yuriy Lutsenko and Ihor Didenko, the former deputy chief executive of the national energy company, Naftogaz Ukrainy. The charges brought against them, while not inconsequential, are nonetheless seen by many observers as a misuse of the judicial process. This is not to imply that the government and prosecutor general’s office should not vigorously pursue all cases of corruption, or that former senior officials should be immune from fair prosecution. But the authorities have an extra burden to pursue such cases in a credible fashion, something they have failed so far to do. The government and prosecutor’s office, anticipating such criticism, note that more than 350 current officials are being investigated for or charged with corrupt activities. None of these individuals, however, hold enough power or influence to suggest that justice is being pursued fairly and blindly. The highest-ranking official currently under investigation in Kyiv is Bohdan Presner, former deputy minister for environmental protection in Yanukovych’s administration. Even if it disputes the claims of selective prosecution, the government understands that, at a minimum, it has a perception problem. As one official acknowledged, the judicial powers should not behave the way they have behaved of late. The same official unfavorably compared the situation today to that before the Orange Revolution, and expressed concern that the judicial system agrees to whatever law enforcement agencies request. Indeed, the strong perception among many observers is that the judicial system does not serve as a check or balance against the executive branch. Such concerns are not allayed by comments from the head of the Constitutional Court, who is reported to have said that Yanukovych can always rely on the loyalty of the court, or by a top law enforcement official who said that Yanukovych can count on us... Conclusions and Recommendations ...In that spirit, to prevent further democratic backsliding in Ukraine, and to support constructive initiatives both inside and outside the government, the assessment team recommends the following: ... 4. Legal Monitoring in Ukraine by the Danish Helsinki Committee for Human Rights 48. As part of their Legal Monitoring in Ukraine, the Danish Helsinki Committee issued on 28 April 2011 a “Preliminary Report on the trials against former Minister of Interior Yurij Lutsenko and former First Deputy Minister of Justice Yevhen Korniychuk”. The relevant parts of the report read as follows: “... It is not the purpose of the monitoring of the criminal cases to establish whether the defendants are guilty or innocent. Ukraine ranks very high on international lists of corruption and any honest attempt to fight it will be welcomed by the international community, even if it should be against politicians from the former regime. Smooth transfer of power from one government to the next is however so important an element in a functioning democracy and prosecution against so many members of a former government so seldomly seen, even in that part of the world, that the present government must understand and accept international skepticism as to its motives. Especially as the present government generally is considered to have a poor record in fighting corruption and could have an evident interest in removing prominent political opponents from future elections. ... The case against Yurij Lutsenko Yurij Lutsenko belonged to the Socialist Party during 1991-2006, when he established the People´s Self-Defense Party. He was Minister of Interior in 2005-2006 and again in 2007-2010. He is now Deputy Editor-in-Chief of the newspaper “Silski Visti”. During Mr. Lutsenko’s work in the ministry at that time opposition politicians, among others the present Vice Prime Minister Borys Kolesnikov and the late ex-governor of Kharkiv Oblast Yevhen Kushnariov, were investigated and detained, and the office of the oligarch and member of the parliament from the Party of Regions Rinat Akhmetov was searched. Investigation against Mr. Lutsenko was opened on 2.11.2010. On 5 November 2010 he accepted a decision by the investigator of a preventive measure in the form of prohibition against leaving his registered residence. The charges were changed on 13.12.2010 and the pre-trial investigation declared finished on the same day, resulting in 47 volumes of case-file. The final charges concerned violation of Art. 191, para. 5, (misappropriation of state property in especially gross amount through abuse of office by an organized group) and Art. 365, para. 3 (excess of official powers that caused grave consequences), for the following alleged actions: 1. unlawful promotion of Mr. Lutsenko’s driver to the rank of police officer, leading to losses caused to the state because of increased salary and payment of other benefits. 2. allowing expenses for the organization of the annual Militsia´s Day festivities in 2009 in violation of a resolution of the government to halt such expenses. 3. having exceeded his power as Minister in connection with the police monitoring of a driver of the former head of the Security Service, who was suspected of complicity in the poisoning of former President of Ukraine Mr. Yushchenko. On 24.12.2010 the investigation was reopened. Lutsenko was arrested on 26 December 2010 for having violated Article 135 of the Criminal Procedure Code of Ukraine by having avoided to acquaint himself with the materials of the case at the time dictated by the investigator. On several days Mr. Lutsenko had failed to appear citing his attorney´s involvement in another criminal case, and on the days where he actually did turn up, he was found to have deliberately drawn out this process. Additionally he had allegedly disclosed via the mass media information gathered by pre-trial investigation in his criminal case. On 21.4.2011 the Kyiv City Court of Appeal extended the detention of Mr. Lutsenko for another month till 27th of May. Few days before the court hearing Mr. Lutsenko finished reviewing the case-file. The prosecution, however, requested further extension due to the fact that legal representatives of Mr. Lutsenko failed to finalize their familiarizing with the case-file against Mr. Lutsenko. Observations, discussions and conclusions: ... 2. According to the Ukrainian Criminal Procedure Code, any preventive measures, including custody, are applied when there are grounds to believe that a person will try to abscond or avoid carrying out procedural decisions, impede the course of justice or continue their criminal activities, as well as to ensure the enforcement of procedural decisions. The law itself is not that different from the legislation of other countries. What is different is however the widespread use of pre-trial detention, as also seen by the detention of Mr. Lutsenko and Mr. Korniychuk, neither of whom would probably have been detained in countries with another legal tradition. A total figure of about 40.000 detained at any time has been mentioned. The European Court of Human Rights dealt in its judgment of 10.2.2011 in the case of Kharchenko vs. Ukraine with the excessive use of detention in Ukraine. The problems of the use of detention in general and in these two cases seem to have been more generally recognized also by authorities in Ukraine. The Monitor learned that the Ombudsman personally has intervened in both cases and informed the courts and the President of Ukraine that the use of detention in general and in these individual cases in her opinion was a violation of their human rights. In most countries such an intervention in a pending case from an ombudsman to the President on activities of the judiciary would probably lead to raised eyebrows; it is mentioned here only to demonstrate the point on violation of human rights. ... 3. In neither of the monitored cases have individual reasons to support the need of pre-trial detention been given by the court. In the Lutsenko case the court only refers that: “ the case materials have data that indicate a possibility by Yurij Lutsenko personally and through others in the future to hamper the exercise of procedural decision in the case and the effect on witnesses ”. This clearly is not an individual justification for the legality of the use of detention with regard to the specific facts of the case, as required by the European Court on Human Rights. 4. In the Lutsenko case the investigator gave him and his lawyer a “schedule” dictating which pages of the files they were to read every day in preparation of his defense, and only gave them access to the files they were instructed to review on that very day. The investigator did not take into consideration whether the defense lawyer had other obligations, which could keep him from preparing this case within the dictated time frame. The defense did not get his own copy of the files, and in neither the Lutsenko nor the Korniychuk cases were the defense allowed by the investigator to photograph or photocopy the files or parts thereof. The defense lawyer during his preparations and during the trial will only have his personal handwritten notes to support his memory. As seen from point 3 above, the court even justified the detention of Lutsenko by the fact that he and his defense lawyer were too slow in reading through the files, thus delaying the trial and not respecting a procedural decision of the investigator. It is unheard of and must be a violation of the European Convention Article 6, paragraph 3.b) that it is up to the decision of the investigator how and when the defendant and his lawyer are to prepare themselves for the upcoming trial. That can not be a procedural decision in the hands of the investigator or the prosecutor, but a right of the defendant and his lawyer. It does not allow fair working conditions or equality of arms that the defense lawyer does not have his own copy of the file and access to all of the files simultaneously. ... 6. During the court session in the Lutsenko case on 25.2.2011 the chairman of the Court of Appeal informed the audience that he had received a written note from Mr. Lutsenko through his lawyer requesting that Mr. Lutsenko be present in the court room. The judge however turned this request down as the note was not “certified by the prison director”. The court therefore had not requested Mr. Lutsenko to be brought from the Detention Center to the court building and the court session took place without defendant. The court can have had no doubt that Mr. Lutsenko wanted to be present nor that the note, which it had received from the defendant’s lawyer, was written by Mr. Lutsenko. The decision indicates a biased attitude in the judiciary against granting the accused person his legal rights and letting him benefit from the assumption of innocence. That also seems to indicate a lack of understanding of or respect for one of the basic principles of human rights: Justice must not only be done but must also be seen to be done. 7. In the Lutsenko case the defense lawyer complained about having only received from the court a notice of the session, in which the question of extension of the detention was to be dealt with, 15 minutes before the meeting. With such a short notice he was unable to meet. The prosecutor claimed that the defense lawyer had been informed 1 hour before the meeting and that he himself had not known of the session earlier. In any case this is not a fair way for the court to inform the parties to the trial about a session, for which they need to prepare themselves and where it is essential that the persons with specific knowledge of the case can meet. ... 10. The Monitor was impressed by the widespread opinion that the Ukrainian courts cannot be considered independent at least in cases related to politics. The judiciary certainly has a problem with its credibility in the public. As the decisive factor of such situation the composition of the Higher Council of Justice was pointed at with its heavy bias in favour of the representation from the President of Ukraine or his affiliated party and the membership of the Prosecutor General and his 2 deputies, the Head of the Security Service etc. after the Judicial Reform in the summer of 2010. The judicial reform has in other ways improved the conditions of the legal system, but the Higher Council of Justice has obtained an unacceptable decisive influence on the appointment of, the disciplinary measures against and the dismissal of judges. The judicial reform law was criticized by the Council of Europe’s Venice Commission. 11. According to a public statement by the Deputy Prosecutor General the prosecution last year initiated 600 disciplinary cases against judges and information indicates that at least 38 judges have been dismissed against an average of 6½ the former years. This is a strong indication that the independence of judges is under strong pressure and that the prosecution has a dominating influence on the future of judges. Prosecutors should not be responsible for disciplining judges; that disturbs the point of balance between prosecution and judiciary. 12. It has also been mentioned that judges are not appointed for an unlimited time until they have served for five years. Their first appointment is made by the President of Ukraine upon proposal of the Higher Council of Justice. After that period their permanent appointment is to be approved by the Parliament where one party and its allies hold a solid majority. That gives judges little room for political independence especially during those initial 5 years in the office. ... 14. The Monitor has been surprised to see a statement by the newly appointed Prosecutor General Viktor Pshonka that he considers himself to be a member of the team of the President and will fulfil his orders. One would rather expect him to express his loyalty to the law and his independence from the political life. 15. This corresponds to many statements about a history of political influence on the prosecution and the courts. Reportedly one of the main reasons for launching the case against Mr. Lutsenko is to pay back for his actions as Minister of Interior against some of the persons who have now come to power. ... 17. It has also been mentioned by several persons that there is a tradition of leaving political investigations open and unconcluded for long periods, sometimes years. This practice can keep the defendants well occupied with meetings with the investigator, keeping them from other activities, and also serves as a Damocles sword to the defendants, knowing that the investigator or the prosecutor at any time can forward cases against them with grave consequences. If the purpose of the investigation is to promote a political aim not protected by the law by prosecuting somebody for acts for which others are not being prosecuted, and thus not treat everybody equally according to the law, the justice is selective and therefore unfair. The charges raised against the former ministers seem to the experienced eye somewhat far-fetched and one would rather expect them to result in a political than a criminal responsibility, if any at all. This monitoring can not and can not be expected to answer with certainty the question of whether these cases are the result of selective justice. If so it however tells about the legal system and tradition of a country, not about the guilt or innocence of an individual. Selective justice and abuse of criminal justice system is a violation of Article 6 on Fair Trial of the European Convention on Human Rights and falls short of the country’s international obligations to ensure respect for the rule of law principles. Ukraine has been monitored by the Council of Europe as to the implementation of the commitments and obligations undertaken when joining that organization. The President of Ukraine issued on 10.1.2011 a decree according to which Ukraine is to fulfill its obligations towards CoE and established a mechanism to oversee it. This process should not be solely focused on the legislative reform. The main problems have been in the culture, tradition and implementation, on top of the outdated and deficient legislation itself (e.g. Ukrainian Criminal Procedure Code dates back to 1961 and its reform is long overdue). Based on the above observations of the monitoring of the cases against Mr. Korniychuk and Mr. Lutsenko it can be concluded that it would be unwise to stop that monitoring now.” | This case concerned the complaint by the applicant, a well-known opposition politician, that his arrest and the decision on his detention had been arbitrary and unlawful, and that he had not been informed about the reasons for his arrest. He also maintained that the proceedings against him and his arrest had been used by the authorities to exclude him from political life and from participation in the upcoming parliamentary elections. |
695 | Agitation against a national or ethnic group | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1978, 1981, 1987 and 1986 respectively. The first applicant lives in Gothenburg and the other applicants live in Sundsvall. 8. In December 2004 the applicants, together with three other persons, went to an upper secondary school ( gymnasieskola ) and distributed approximately a hundred leaflets by leaving them in or on the pupils’ lockers. The episode ended when the school’s principal intervened and made them leave the premises. The originator of the leaflets was an organisation called National Youth and the leaflets contained, inter alia, the following statements: “Homosexual Propaganda ( Homosexpropaganda ) In the course of a few decades society has swung from rejection of homosexuality and other sexual deviances ( avarter ) to embracing this deviant sexual proclivity ( böjelse ). Your anti-Swedish teachers know very well that homosexuality has a morally destructive effect on the substance of society ( folkkroppen ) and will willingly try to put it forward as something normal and good. -- Tell them that HIV and AIDS appeared early with the homosexuals and that their promiscuous lifestyle was one of the main reasons for this modern-day plague gaining a foothold. -- Tell them that homosexual lobby organisations are also trying to play down ( avdramatisera ) paedophilia, and ask if this sexual deviation ( sexuella avart ) should be legalised.” 9. For distributing the leaflets, the applicants were charged with agitation against a national or ethnic group ( hets mot folkgrupp ). 10. The applicants disputed that the text in the leaflets expressed contempt for homosexuals and claimed that, in any event, they had not intended to express contempt for homosexuals as a group. They stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education dispensed in Swedish schools. 11. On 11 July 2005 the District Court ( tingsrätten ) of Bollnäs found that the statements in the leaflets had clearly gone beyond what could be considered an objective discussion of homosexuals as a group and that the applicants’ intention had been to express contempt for homosexuals. It therefore convicted the applicants of agitation against a national or ethnic group, and sentenced the first and second applicants to two months’ imprisonment, the third applicant to a suspended sentence ( villkorlig dom ) combined with a fine, and the fourth applicant to probation ( skyddstillsyn ) combined with 40 hours of community service. 12. The applicants as well as the prosecutor appealed against the judgment to the Court of Appeal ( hovrätten ) for Southern Norrland. The applicants requested the court to reject the charges, to consider the criminal act minor, or at least to reduce the punishments. The prosecutor appealed as regards the first three applicants, requesting the court to consider the criminal act to be aggravated or at least to increase the punishments. 13. On 14 December 2005 the Court of Appeal, referring to the Supreme Court’s judgment of 29 November 2005 in the case NJA 2005 p. 805 (see below under “Relevant domestic law and practice”), rejected the charges against the applicants on the ground that a conviction would amount to a violation of their right to freedom of expression as guaranteed by the Convention. 14. The Office of the Prosecutor-General ( Riksåklagaren ) appealed against the judgment to the Supreme Court ( Högsta domstolen ) and requested it to convict the applicants of agitation against a national or ethnic group, arguing that it would not amount to a violation of Article 10 of the Convention in the circumstances of the present case. The applicants disputed the appeal. 15. On 6 July 2006 the Supreme Court convicted the applicants of agitation against a national or ethnic group. The majority of judges (three out of five) first considered decisive for the outcome of the case whether the interference with the applicants’ freedom to distribute the leaflets could be considered necessary in a democratic society and whether the interference with their freedom of expression could be deemed proportionate to the aim of protecting the group of homosexuals from the violation that the content of the leaflets constituted. The majority then held: “In the light of the case-law of the European Court of Human Rights regarding Article 10, in the interpretation of the expression “contempt” in the provision regarding incitement against a group, a comprehensive assessment of the circumstances of the case should be made, where, in particular, the following should be considered. The handing out of the leaflets took place at a school. The accused did not have free access to the premises, which can be considered a relatively sheltered environment as regards the political actions of outsiders. The placement of the leaflets in and on the pupils’ lockers meant that the young people received them without having the possibility to decide whether they wanted to accept them or not. The purpose of the handing out of the leaflets was indeed to initiate a debate between pupils and teachers on a question of public interest, namely the objectivity of the education in Swedish schools, and to supply the pupils with arguments. However, these were formulated in a way that was offensive and disparaging for homosexuals as a group and in violation of the duty under Article 10 to avoid as far as possible statements that are unwarrantably offensive to others thus constituting an assault on their rights, and without contributing to any form of public debate which could help to further mutual understanding. The purpose of the relevant sections in the leaflets could have been achieved without statements that were offensive to homosexuals as a group. Thus, the situation was in part different from that in NJA 2005 p. 805, where a pastor made his statements before his congregation in a sermon based on certain biblical quotations. The above-mentioned reasons taken together lead to the conclusion that Chapter 16, Article 8 of the Penal Code, interpreted in conformity with the Convention, permits a judgment of conviction, given the present circumstances of this case.” 16. The minority (two judges) found that convicting the applicants would not be proportionate to the aims pursued and would therefore be in violation of Article 10 of the Convention. Hence, the minority wanted to acquit the applicants but gave separate reasons for this conclusion, at least in part. One of them was of the view that the prosecution was not formulated in such a way that the Supreme Court could take into consideration that the leaflets had been distributed at a school and addressed to the pupils, while the other found it natural that the leaflets had been aimed at pupils and agreed with the majority that an overall assessment of the circumstances had to be made. 17. The first three applicants were given suspended sentences combined with fines ranging from SEK 1,800 (approximately 200 euros (EUR)) to SEK 19,000 (approximately EUR 2,000) and the fourth applicant was sentenced to probation. | This case concerned the applicants’ conviction for distributing in an upper secondary school approximately 100 leaflets considered by the courts to be offensive to homosexuals. The applicants had distributed leaflets by an organisation called National Youth, by leaving them in or on the pupils’ lockers. The statements in the leaflets were, in particular, allegations that homosexuality was a “deviant sexual proclivity”, had “a morally destructive effect on the substance of society” and was responsible for the development of HIV and AIDS. The applicants claimed that they had not intended to express contempt for homosexuals as a group and stated that the purpose of their activity had been to start a debate about the lack of objectivity in the education in Swedish schools. |
862 | Video surveillance | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1969 and 1961 respectively and live in Podgorica. A. Video surveillance 6. On 1 February 2011 the Dean of the School of Mathematics of the University of Montenegro ( Prirodno-matematički fakultet ), at a session of the School ’ s council, informed the professors teaching there, including the applicants, that “ video surveillance has been introduced” ( da je uveden video nadzor ) and that it was in the auditoriums where classes were held. 7. On 24 February 2011 the Dean issued a decision introducing video surveillance in seven amphitheatres and in front of the Dean ’ s Office ( ispred dekanata ). The decision specified that the aim of the measure was to ensure the safety of property and people, including students, and the surveillance of teaching ( praćenje izvršavanja nastavnih aktivnosti ). The decision stated that access to the data that was collected was protected by codes which were known only to the Dean. The data were to be stored for a year. 8. On 14 March 2011 the applicants complained to the Personal Data Protection Agency ( Agencija za zaštitu ličnih podataka, “the Agency”) about the video surveillance and the collection of data on them without their consent. They relied on the Personal Data Protection Act (see paragraphs 24 ‑ 27 below).The applicants submitted, in particular, that the amphitheatre where they taught was locked both before and after the classes, that the only property there was fixed desks and chairs and a blackboard, that they knew of no reason to fear for anybody ’ s safety and that, in any event, there were other methods for protecting people and property and monitoring classes. They requested that the cameras be removed and the data erased. 9. On 21 March 2011 two Agency inspectors issued a report ( zapisnik ) after visiting the School of Mathematics, stating that the video surveillance was in accordance with the Personal Data Protection Act. According to them, there had been cases of destruction of university property, the bringing in of animals, drink and tobacco, and the presence of people who were not students. They also noted that the cameras provided “a picture from a distance without clear resolution, that is people ’ s features [could not] be easily recognised”, that they could not zoom in and out and did not record any audio ( ne reprodukuju audio zapis ). While the decision on introducing video surveillance had provided that data would be stored for a year, the servers ’ capacity was such that the data was stored for thirty days and then automatically erased by new recordings. The inspectors also noted that information on a “plan to introduce video surveillance” ( planiranje uvođenja video nadzora ) had been given at a session of the School Council on 1 February 2011. 10. On 22 March 2011 the applicants filed an objection to the report, submitting, inter alia, that they were not aware of any of the alleged incidents and that, in any event, it was unclear how such cameras could ensure the safety of people and property. They agreed that cameras over the entrances and exits from the university building might perhaps be an adequate form of ensuring such security. They also submitted that employees had not been “notified in writing on the introduction of video surveillance before it started” ( nijesu bili obavješteni o uvođenju video nadzora u pisanom obliku prije početka vršenja istog ). Notably, the decision had been issued on 24 February 2011 whereas surveillance had commenced a few weeks before. They did not specify when exactly but referred to the minutes of the session of 1 February 2011 (see paragraph 6 above). 11. On 28 April 2011, after the applicants ’ objection to the report, the Agency ’ s Council ( Savjet Agencije za zaštitu ličnih podataka ) issued a decision ( rješenje ) ordering the School of Mathematics to remove the cameras from the auditoriums within fifteen days as the video surveillance was not in accordance with the Personal Data Protection Act, notably sections 10, 35 and 36 (see paragraphs 24, and 26-27 below). In particular, the Council held that the reasons for the introduction of video surveillance provided for by section 36 had not been met, given that there was no evidence that there was any danger to the safety of people and property in the auditoriums, still less to confidential data, and that the surveillance of teaching was not among the legitimate grounds for video surveillance. None of the parties initiated an administrative dispute in court against that decision. 12. On 25 January 2012 the School of Mathematics was served with the Agency Council ’ s decision of 28 April 2011. The cameras were removed by 27 January 2012 at the latest. It appears that the data that had been collected was also erased on an unspecified date. B. Civil proceedings 13. On 19 January 2012 the applicants brought a compensation claim against the University of Montenegro, the Personal Data Protection Agency and the State of Montenegro, for a violation of their right to a private life, notably by the unauthorised collection and processing of data on them. They submitted in particular that such an interference with their private lives, without any possibility to control that process, was not provided for by any piece of legislation and that therefore it had not been in accordance with the law, within the meaning of Article 8 § 2 of the Convention. They also maintained that it had not pursued any legitimate aim and had not been necessary in a democratic society. They relied on the relevant provisions of the Personal Data Protection Act, Article 8 of the Convention and the relevant case-law of the Court. 14. On 27 December 2012 the Court of First Instance ( Osnovni sud ) in Podgorica ruled against the applicants. The court found that the notion of private life certainly included activities in the business and professional spheres. It also held, however, that the university was a public institution performing activities of public interest, teaching being one of them ( poziv redovnog profesora [je] takođe javan ), and that it was thus not possible for video surveillance of the auditoriums as public places to violate the applicants ’ right to respect for their private life. It was a working area, just like a courtroom or parliament, where professors were never alone, and therefore they could not invoke any right to privacy that could be violated. The data that had been collected could thereby also not be considered as personal data. The university ’ s failure to remove the cameras immediately had been unauthorised, but it could not be classed as an interference with the applicants ’ private life and was therefore irrelevant. The court further held that such a conclusion was in accordance with the Court ’ s case-law given that the monitoring of actions taking place in public was not an interference with a person ’ s private life when those means just recorded ( bilježi ) what others could see if they happened to be in the same place at the same time. The court also held that the monitoring of the actions of an individual in a public place by the use of photographic equipment which just instantaneously recorded visual data did not give rise to an interference with that individual ’ s private life, which could arise once any footage of such material became publicly available. It concluded that the installation and use of video surveillance and the collection of data thereby had not violated the applicants ’ right to privacy ( pravo na privatnost ) and had therefore not caused them any mental anguish. During the proceedings one of the witnesses stated that there had been cases of theft and of damage to the interior of the building and that on one occasion five laptops had disappeared from a laboratory. Those events had led to the hiring of a private security agency two or three years earlier. According to the witness, the police had suggested installing video surveillance equipment on the School ’ s premises. The court, for its part, did not deal with those issues. 15. On 31 December 2012 the applicants appealed. They relied, inter alia, on Article 8 of the Convention. They maintained, in particular, that the interference with their right to respect for their private lives had not been in accordance with any law and had therefore been contrary to Article 8 § 2 of the Convention. It had also not been necessary in a democratic society. Furthermore, the Court of First Instance had not relied on any legal provision in ruling against them and had failed to assess their arguments. 16. On 17 July 2013 the High Court ( Viši sud ) in Podgorica upheld the first-instance judgment, endorsing its reasons in substance. The High Court held in particular that the applicants had not proved that their right to privacy had been violated and found that the first-instance court had “sufficiently related the Court ’ s case-law to the case at issue ( dao jasan osvrt na odnos prakse Evropskog suda za ljudska prava i konkretnog slučaja ) ... The court considered the [applicants ’ ] other arguments and found that they did not justify ruling otherwise in the present case...”. 17. The applicants did not file a constitutional appeal. | This case concerned an invasion of privacy complaint by two professors at the University of Montenegro’s School of Mathematics after video surveillance had been installed in areas where they taught. They stated that they had had no effective control over the information collected and that the surveillance had been unlawful. The domestic courts rejected a compensation claim however, finding that the question of private life had not been at issue as the auditoriums where the applicants taught were public areas. |
123 | Interview without parental consent | 2. The applicant was born in 2001 and lives in Bucharest. She was represented by Ms V. Ţucureanu, a lawyer practising in Bucharest. 3. The Government were represented by their Agent, most recently Ms O.-F. Ezer, of the Ministry of Foreign Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. I. THE TELEVISION REPORT 5. On 22 October 2012, a private Romanian television channel with national coverage sent its reporters to the public school in Bucharest where the applicant was enrolled to cover a recent tragic event, namely the death of a pupil during a school trip on which the school pupils were accompanied by school staff. 6. The applicant was not among the pupils who attended the above ‑ mentioned school trip. 7. A reporter interviewed the applicant, aged eleven at the time, in front of her school, in the absence of her parents, close relatives or teachers, and without obtaining prior consent from any of them. The reporter questioned the applicant, among other pupils, in relation to the tragic event, asking her: - if she had spoken to her schoolmates who had attended the school trip ( Ai vorbit cu colegii tăi care au fost în excursie? ) during which the tragic event had occurred; - if she had any knowledge from her schoolmates about whether a schoolteacher had been in proximity to the victim ( Ştii cumva, era vreun profesor în jurul ei, ţi-au zis colegii ?) when the tragic event had occurred; - how she would describe the schoolteachers who had accompanied the pupils on the school trip ( Cum sunt profesorii cu care aţi fost în excursie ?); - if any similar events had taken place at the school before. 8. The applicant told the reporter that she had heard from her schoolmates who had been present during the school trip that the victim had felt ill. The applicant also said that she could not remember anything more, but she believed that the girl had either felt ill and leaned on the train door, or she had been pushed. She also said that she believed that no schoolteacher had been near to the victim when the tragic event had occurred because if one had been present, the tragedy would not have happened. The applicant further said that “it would be better to care more for pupils and to make them secure” ( Mai bine ar fi trebuit să fie mai multă grijă sau pază pentru elevi ). When asked particularly about the schoolteachers, the applicant said that they “should have taken better care”. Lastly, concerning the question of whether other incidents of this kind had occurred in her school, the applicant told the reporter that no such incidents had occurred there, but they had done so in another school during a school trip with an accompanying schoolteacher, who she named. 9. On the same day (22 October 2012), the television channel aired a report in which extracts from the interview recorded with the applicant were broadcast. The news, including the video and a transcript, was also posted on the television channel website under the title “Schoolmates of the girl who fell out of the train are shocked. The pupil was going to the toilet when the tragedy occurred”. 10. The applicant alleges that, following that television report, she was recognised by her schoolmates and teachers and subsequently suffered from their showing a hostile attitude towards her. Her mother was summoned to the school to give a written declaration that she would prevent the applicant from making any other statements in front of journalists. The applicant’s mother also made apologies and gave explanations to all of the schoolteachers. II. THE LAWSUIT INTRODUCED BY THE APPLICANT 11. On 14 February 2013, the applicant, represented by her mother, brought civil proceedings for compensation in respect of non-pecuniary damage against the private company X, which held the licence for the television channel that had broadcast the interview conducted with her on 22 October 2012 without prior parental consent. She relied on the provisions of the Civil Code concerning the right to one’s own image, that included the right to oppose the reproduction or use of one’s own image (see paragraph 25 below), and the provisions of Decision no. 220/2011 of the National Audiovisual Council ( Consiliul Naţional al Audiovizualului, hereafter the “NAC”) relating to the requirement of prior written parental consent for the participation of minor children, aged under fourteen, in television programmes (see paragraphs 28-31 below). First-instance judgment 12. By a decision of 10 December 2013, the Ploiești District Court allowed the applicant’s civil action and ordered the private company X to pay the applicant 200,000 Romanian lei in respect of non-pecuniary damage. The District Court found that the defendant had acted in breach of the relevant provisions issued by the NAC in the field of audiovisual broadcasting because the applicant, a minor child, had been interviewed without parental consent. The District Court also concluded that, whether or not the applicant’s face had been blurred out when her interview had been broadcast on television, which was an issue that was in dispute between the parties, the applicant was easily recognisable on the video recording made available to the court by company X, and she had been recognised by her schoolmates and teachers, if only by her voice, which had not been distorted in any way in order to protect her image or her privacy. The District Court found that by breaching the relevant legal provisions on the protection of children’s privacy, the defendant had caused non-pecuniary damage to the applicant in so far as she had suffered severe emotional distress and anguish, having been, inter alia, summoned with her mother by the director of the school and asked not to give any further statements to the media on the subject of the above-mentioned tragic event (see paragraph 10 above). Appeal proceedings 13. Company X appealed against that judgment on the grounds of its journalistic freedom to report on subjects of public interest, such as the tragic event that had happened at the school attended by the applicant. 14. By a judgment of 23 September 2014, the Prahova County Court upheld the defendant’s appeal and dismissed the civil action brought by the applicant. While acknowledging that there had been no parental consent, the County Court found that having regard to the public interest in the subject of the report that had included the interview with the applicant, and to the journalistic freedom of the defendant, the latter was not liable for the non ‑ pecuniary damage caused to the applicant by the unlawful conduct of the schoolteachers, and in particular of the director of the school who had summoned the applicant and her mother to make a written statement that she would not give any further interviews to the media. The applicant’s appeal on points of law 15. The applicant lodged an appeal on points of law against the judgment of the Prahova County Court, arguing that her right to respect for her dignity and her right to protect her image as a child had not been secured, despite Article 10 of the Convention allowing for limitations on freedom of expression for the protection of the rights of others, and in particular of minor children. The applicant relied on constitutional provisions on the protection of private life, including the right to her own image, and in particular the provisions of the Constitution stating that the right to information should be without prejudice to measures to protect young people and children, who should enjoy special legal protection (see paragraphs 22-24 below). The final judgment 16. By a final judgment of 29 January 2015, the Ploiești Court of Appeal dismissed the applicant’s appeal on points of law. 17. The Court of Appeal examined whether company X was liable for the non-pecuniary damage suffered by the applicant, because of the hostile attitude of her schoolmates and teachers, after interviewing her without her parents’ consent. The Court of Appeal reiterated the provisions of NAC Decision no. 220/2011 regarding the Code on the Regulation of Audiovisual Content (see paragraphs 28-31 below). As had been argued by the applicant, Article 7 of that Decision required the consent of parents or legal representatives to involve a minor child in audiovisual programmes, other than cultural and sporting events (see paragraph 30 below). 18. However, the Court of Appeal decided that the County Court had correctly found that the interview concerned an issue of justified public concern, its scope being to show the deficiencies in the organisation of a school trip. The Court of Appeal emphasised that the imperatives of respecting the principle of the superior interest of the child and the right to protect his or her image and his or her family and private life, had to be interpreted and applied in direct correlation with the principle of freedom of expression. The Court of Appeal therefore declared that the decision of the County Court was correct and company X had not committed an unlawful act. 19. The final judgment of the Court of Appeal reads as follows in its relevant parts: “The Court will not reiterate the theory of civil responsibility for tort, largely explained in the lower courts’ decisions, and also by the appellant in her reasons for the appeal on points of law. It will analyse the present case in the light of the applicable legal provisions to examine whether the conditions are met for the obligation to make good the tort. In this context, the Court reiterates the importance for the present case of the provisions of Decision no. 220/2011 regarding the Code on the Regulation of Audiovisual Content. It is true that, in accordance with Article 7 § 2 of that Decision, which was also relied on by the applicant as the legal basis for her action, the participation of a minor aged under 14 in audiovisual programmes other than cultural events and sports competitions is possible only with the consent of the latter, or with the parents’ consent or the consent of another legal representative, if applicable. Nevertheless, regardless of the fact that the interview – in which the applicant’s face was blurred out, an issue which was contested by the applicant, including in her reasons for the appeal on points of law, but which argument was never proved during any of the procedural phases – can be considered to be an “audiovisual programme” as defined by the Audiovisual Act (Law no. 504/2002), in order to attract the applicability of Article 7 § 2, this provision has to be interpreted in conjunction with the other provisions of the above-mentioned Decision. Having regard to this, the court considers that the County Court has lawfully taken into account the provisions of Article 31, and Article 32 §§ 2 and 3, of Decision no. 220/2011, which in essence strike a fair balance between the rights and interests of the persons [in question] and the finding of the truth regarding issues of justified public concern. Therefore, the County Court correctly considered that the interview in question revealed a problem of justified public concern, its purpose being to expose deficiencies in the organisation of a school trip. The appellant’s arguments based on Article 2, and Article 3 § 1, of the above-mentioned Decision do not allow for this appeal on points of law to be allowed either. As indicated above, the principle of the superior interest of the child and his [or her] right to the protection of his [or her] image and private life have to be interpreted in the light of the [principle of] freedom of expression enshrined in the Constitution and in conformity with the case-law of the European Court of Human Rights regarding the role of the media in a democratic society. For these reasons, the court cannot accept the appellant’s arguments based on Article 72, Article 73 and Article 74 of the Civil Code. Having regard to the above, the Court considers that the County Court correctly found that the conditions for the existence of an unlawful act have not been met in the present case.” 20. As regards the tort alleged by the applicant, on the basis of the hostile attitude of the teachers, said to be a negative consequence of the interview, the Court of Appeal considered that this kind of behaviour by a professional body was not in accordance with their professional standards, and was without justification. The Court of Appeal also considered that it was hard to believe that, even if the parents had given their consent, the behaviour of the teachers would have been different, “their aim being to suppress the facts”. 21. On the basis of the above-mentioned arguments, the Court of Appeal stated that the negative effects suffered by the applicant after the interview were not direct consequences of it, but were a consequence of the non ‑ professionalism of the teachers “who tried in fact to cover the facts”. | This case concerned a television interview of a minor, without parental consent or adequate measures to protect her identity. The interview, which concerned the death of a schoolmate, had resulted in her being bullied and had caused her emotional stress. |
57 | Adoption | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1967 and 199 3 respectively and are resident in Luxembourg. 6. On 6 November 1996 the Family Court of the province of Huamanga ( Peru ) pronounced the adoption of the second applicant, then aged three years and previously declared abandoned, by the first applicant. The judge listed the various stages of the adoption procedure which had been completed in accordance with the legal conditions. By the judgment the child acquired the status of daughter of the first applicant, ceased to belong to her blood family and henceforth bore the forenames and names J.M.W.L. In accordance with the legal conditions and the agreement drawn up between the technical secretariat for adoptions in Peru and the Luxembourg-Peru Association, the latter was declared responsible for monitoring the child and, if necessary, for the legalisation of the adoption in Luxembourg. 7. The judgment of the Family Court of the province of Huamanga was declared enforceable – according to the certificate issued by that court on 14 December 1996 – and entered in the civil status register of Ayacucho ‑ Huamanga. 8. In May 1997 the first applicant, who lived alone in Luxembourg with the adopted child, gave birth to a daughter. On 13 November 2006 her lawyer stated that she was now the mother of four children attending school and still lived in Luxembourg. A. Proceedings instituted before the civil courts for a declaration that the Peruvian judgment pronouncing full adoption was enforceable in Luxembourg 9. On 10 April 1997 the applicants brought proceedings against the Attorney General's Department before the Luxembourg District Court. They requested the court to declare that the Peruvian judgment was enforceable in the Grand Duchy as though it were a judgment ordering full adoption delivered by the competent Luxembourg court; they stated that the purpose of the application for enforcement was to ensure that the child could be registered in the civil status register in the Grand Duchy, acquire the nationality of her adoptive mother and be granted definitive leave to remain in Luxembourg. 1. Judgment of the District Court of 11 February 1998 10. On 11 February 1998 the District Court declared the application for enforcement admissible as it had been properly submitted by originating summons. In that regard, the court stated the following : “ An application for enforcement of a foreign judgment is a principal legal claim different in nature from the application that gave rise to the foreign judgment. The court dealing with the application for enforcement does not examine the merits of the application submitted to the foreign court, but confines itself to verifying that the decision satisfies the relevant international procedural requirements. The application for enforcement of an adoption judgment, which is different in nature from the application to adopt, is not subject to the objection procedure in [the relevant article] of the Code of Civil Procedure, under which applications to adopt may be made by petition ... ” 11. The court decided that a court dealing with an application for enforcement of an adoption judgment delivered by a foreign court must first of all ascertain whether the foreign court was competent by reference to the rules determining its jurisdiction. On that point, the court concluded that the adoption had been pronounced by the court that was competent according to Article 370 of the Luxembourg Civil Code. 12. As for the law applicable to the merits of the case, the court first of all recalled the positions taken by the parties to the proceedings. Thus, the Attorney General's Department maintained that the court should ascertain whether the foreign court had applied the law designated by the Luxembourg system of private international law. As the adoptive parent was of Luxembourg nationality, the conditions for adoption were governed by Luxembourg law; and Article 367 of the Luxembourg Civil Code did not permit full adoption by an unmarried person. The Attorney General's Department concluded that in pronouncing full adoption by the first applicant, as an unmarried person, the Peruvian court had failed to apply Luxembourg law. The applicants were of the view that the court should confine itself to examining whether the adoption pronounced in Peru had been made according to the procedures prescribed by the laws of Peru. They submitted, in particular, that the final paragraph of Article 370 of the Luxembourg Civil Code must be interpreted as meaning that “ the Luxembourg international rule on conflict expressly recognises as valid an adoption made abroad by an authority competent under the laws of that country, ... provided that the local procedure and local provisions were complied with ”. The court decided that the final paragraph of Article 370 of the Civil Code introduced a rule on jurisdiction and also maintained its rules on the conflict of laws. It added that according to Article 370 of the Civil Code the adoption by the first applicant, of Luxembourg nationality, was governed by Luxembourg law with respect to the requisite conditions for adoption. The court concluded that the court dealing with an application to enforce the decision must ascertain whether the adoption had been pronounced in accordance with Luxembourg law with respect to those conditions. 13. The court then stated that it had adjourned the deliberations on 11 November 1997 to enable the parties to submit their observations on the following preliminary questions which it proposed to refer to the Constitutional Court : “ 1. The law on adoption, more particularly Article 367 of the Civil Code, allows a married couple to adopt a child fully and prohibits full adoption by an unmarried person. Is that law consistent with Article 11(3) of the Constitution, which provides that'the State guarantees the natural rights of human beings and the family'and Article 11(2) of the Constitution, which states that'Luxemburgers are equal before the law'? 2. Is the right to found a family a natural right of human beings and the family? 3. Is the right to found an adoptive family a natural right of human beings and the family? 4. Does the right to found a family include the right to found a single-parent family? 5. Is the right to found a family a right of only married human beings? 6. Does the principle of equality before the law allow full adoption to be authorised for married persons to the exclusion of unmarried persons? 7. Do Articles 11(2) and (3) of the Constitution establish rights of an unmarried person to full adoption on the same terms as those applicable to a married couple? ” 14. The court confirmed that it must examine the correct application of Article 367 of the Civil Code and its conformity with the Constitution before adjudicating on the application for enforcement. In order to do so, the court requested the applicants to clarify their actual family situation, on the following grounds : “ By submissions of 15 December 1997 Ms Jeanne Wagner's representative maintained that the Wagner family existed in fact and in law and that it was not a single-parent family. He also submitted that nowadays'the more general acceptance by society of unmarried cohabitation has led to an increase in the number of children living in a single home with a father and mother who are not married. It is less and less certain that the parents need to be married in order for the child to grow up in a home with a father and a mother'. If those submissions have any meaning, Ms Jeanne Wagner is living as part of a couple without being married. ... The assertion of the existence of a family which is not a single - parent family is new and not substantiated by any evidence. The social inquiry report of 6 August 1997, which was submitted to the court on 28 October 1997, states that Ms Jeanne Wagner gave birth to a daughter in May 1997. That report on the adaptation of the adopted child in her new family in Luxembourg examines only the relationship between the mother and the child. It does not mention the existence of a man in Ms Wagner's home or any relationship between the adopted child and Ms Wagner's partner. The pre-adoption report drawn up on 30 April 1996, also by social worker [B.], states as the general reason for adopting the conviction that'children are the purpose of life'. Ms Wagner was approaching her thirtieth birthday and decided'not to wait to meet the ideal man in order to have children but to adopt a child on her own, in the knowledge that her family would help her ...' As the reason for adopting a Peruvian child, the social worker observed that in Luxembourg Ms Wagner encountered many obstacles, mainly the fact that she was not married.'The only country which has an agreement with Luxembourg and which consents to adoption by an unmarried woman is Peru and thus Ms Wagner contacted the Luxembourg-Peru Association and prepared the file through that association'. The social worker recommended that the adoption should be approved, as the child found a welcoming home'within that “ single-parent ” family'. The reports filed by the applicant therefore mention only a family consisting of the mother and two children. It is important to refer to the Constitutional Court questions which are appropriate to the adoptive parent's actual family situation. Adoption by a family consisting of an unmarried couple may receive a different reply from that given to adoption by an unmarried mother living alone. It is therefore for the adoptive parent to establish her actual family situation and to establish that her family is not a single-parent family. ” 15. The hearing was resumed on 10 March 1998. 2. Judgment of the District Court of 1 April 1998 16. In its judgment of 1 April 1998, the court first of all set out the views expressed by the applicants in relation to the proposed preliminary questions. Thus, the applicants, first, emphasised that the court was dealing with an application for enforcement and not an application to adopt and, second, took issue with the proposed questions because they emphasised the rights of the mother, whereas the real issue was the rights of the child adopted following the Peruvian judgment. The applicants also observed that the first applicant had given birth to a child in May 1997, and proposed the following preliminary questions : “ 1. Is the right to secure from the Luxembourg courts recognition of a family relationship validly established abroad for the purposes of securing recognition that the adopted child has the same political and civil rights as a biological child of the adoptive mother a natural right of the human being, and more particularly of an adopted child? 2. In so far as Article 367 of the Luxembourg Civil Code must, in spite of the substance of Article 370, final paragraph, be considered to constitute an obstacle to the recognition of a full adoption lawfully made abroad by an unmarried mother of Luxembourg nationality, and must be so considered in spite of the substance of Articles 7 and 21 of the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989, as approved by the Law of 20 December 1993, does not the principle of equality before the law set forth in Article 11(3) of the Constitution require recognition of that full adoption in so far as such recognition is necessary in order for the adopted child to be able to enjoy all her political and civil rights to the same extent as her biological collaterals? Does the principle of equality before the law allow a difference in treatment to be created by the law, in particular with respect to the entry of the adoption in the civil status register, the issuing of the certificate of nationality and the situation regarding succession, in complete legal certainty between a non-marital child and an adopted child of the same mother? ” 17. The court then gave judgment in the following terms : “ The court must ascertain whether the conditions prescribed by Luxembourg law for adoption were satisfied at the time when the adoption was pronounced by the Peruvian judge. In fact, Ms Wagner is an unmarried woman who, according to Article 367 of the Civil Code, cannot undertake a full adoption. The question that arises is therefore whether the prohibition on full adoption by an unmarried person is compatible with the constitutional rights in Article 11(3) and (2), that is to say, any rights enjoyed by the mother, and not by the child. When ensuring that the decision to be enforced satisfies the relevant international procedural requirements, the court must examine whether the foreign court was in a position to pronounce the adoption by reference to the conditions on adoption provided for by the relevant Luxembourg legislation. The establishment of a constitutional right to adopt without discrimination between married persons and unmarried persons does not preclude the specific assessment of the physical and mental situation of the persons wishing to adopt and of their capacity to raise and contribute to the development of a child. It may be that the right to family life is not recognised where the best interests of the child would be in danger. The existence of a right is distinct from its actual exercise. As Ms Wagner is an unmarried woman not living as part of a couple, the questions which correspond to her family situation relate to a single-parent family. The questions envisaged by the court on 11 November 1997 are therefore relevant to the outcome of the dispute. Examination of the existence of “a right to secure recognition” in Luxembourg “of a legal parent-child relationship validly established abroad” assumes that the valid creation of an adoptive parent-child relationship within the meaning of Luxembourg law is established. The first preliminary question proposed by Ms Wagner is irrelevant, as the lawfulness of the Peruvian adoption has not been established. Examination of the second question proposed must be reserved. As matters now stand, the questions envisaged by the court on 11 November 1997 should be referred. ” 3. Judgment of 13 November 1998 of the Constitutional Court 18. On 13 November 1998 the Constitutional Court declared the questions numbered 2 to 7 (paragraph 13 above ) inadmissible. As for the first question, it decided that Article 367 of the Civil Code was not contrary to the Constitution, for the following reasons : “ Regarding Article 11(3) of the Constitution : ... Article 11(3) of the Constitution states that the State guarantees the natural rights of human beings and the family; ... natural rights are those flowing from human nature and exist, even without a legislative text; ... applied to the family, they include the right to procreate and the right to live together; ..., in parallel, the legislature has established, by adoption, a substitute legal parent-child relationship which, while it demands proper motives on the part of the adoptive parents, must above all be advantageous for the person adopted; ... [adoption] has its basis in positive law and not in natural law; ... it is therefore for the legislature to put in place all the conditions and limits necessary for its proper functioning and satisfying the interests of society and of the adoptive family; Regarding Article 11(2) of the Constitution : ... Article 11(2) of the Constitution provides that'all Luxemburgers are equal before the law'; ... that constitutional principle, which is applicable to every individual affected by Luxembourg law if personality rights are concerned, is not to be understood in an absolute sense, but requires that all those in the same factual and legal situation be treated in the same way; ... the specific treatment is justified if the difference in condition is effective and objective, if it is in the public interest and if the extent of its application is not unreasonable; ... the specific treatment is lawful in the present case as it is based on a genuine distinction resulting from the civil status of the persons, on an increased guarantee in favour of the adopted child as a result of the number of persons holding parental authority in the case of married persons and on reasonable proportionality owing to the fact that simple adoption remains available to an unmarried person in compliance with the procedural and substantive requirements provided for by law; ” 4. Judgment of the District Court of 2 June 1999 19. On 2 June 1999 the district court dismissed the application for enforcement, on the ground that the Peruvian adoption judgment had been delivered contrary to the Luxembourg law applicable according to the rule on the conflict of laws set forth in Article 370 of the Civil Code. 20. The court upheld the argument of the Attorney General's Department that the Peruvian judge had not applied Luxembourg law by pronouncing full adoption by an unmarried Luxembourg woman. 21. The court concluded that there was no need to consider whether the Peruvian decision was contrary to public policy. In that regard, however, it made the following observation : “ ... according to the pre-adoption social inquiry report of 30 April 1996, Ms Wagner chose to adopt in Peru, through the Luxembourg-Peru Association, since Peru permits adoption by an unmarried woman, whereas she encountered various obstacles to adoption in Luxembourg, mainly because she was not married. Ms Wagner therefore decided to obtain indirectly, by enforcement of the adoption in Peru, what she was unable to obtain directly by an application to adopt in Luxembourg. However, a judgment obtained by circumventing the statutory requirements cannot be enforced. ” 22. The court then dealt with the second preliminary question which had been proposed by the applicants at the earlier hearing : “ The judgment of April 1998 reserved the alternative preliminary question proposed by Ms Wagner. In the event that Article 367 of the Civil Code precluded full adoption, Ms Wagner proposed that the Constitutional Court should examine whether the principle of equality allowed a difference in treatment to be created by law, notably with respect to the entry of the adoption in the civil status registers, the issuing of a certificate of nationality and the situation regarding succession between the non-marital child and the adoptive child of the same mother. In her submissions lodged after the decision of the Constitutional Court, Ms Wagner maintained that proposal for a preliminary question.. Under [the relevant section] of the ... Constitutional Court (Organisation) Act, a court before which a party has raised a question relating to the constitutionality of a law is not required to refer the matter to the [Constitutional] Court if the question is wholly unfounded or if the [Constitutional] Court has already ruled on a question having the same subject-matter. ... As the [Constitutional] Court decided [in its judgment of 13 November 1998] that adoption was not a constitutional right but was a matter for legislation, and on the basis that the law may introduce a distinction between persons having different civil status, the preliminary question proposed by Ms Wagner is wholly unfounded. The question also seeks to secure a review of the compatibility of the law on adoption, which prohibits full adoption by an unmarried person, with the principle of equality and the right to family life. The [Constitutional] Court held that biological filiation and adoptive filiation were different in nature, the former coming under natural law protected by the Constitution and the latter created by the legislature. It also decided that the principle of equality applied to those in the same factual and legal situation. As an adoptive child is in a legal and factual situation distinct from that of a non-marital child and as the principle of equality assumes that the situation of the persons is the same, the proposed question is unfounded. There is thus no reason to refer the question to the Constitutional Court. . ” 23. Lastly, the court rejected the argument put forward by the applicants on the basis of the Convention on the Rights of the Child, for the following reasons : “ Ms Wagner maintains that public policy and the Convention on the Rights of the Child require that the adoption decision be enforced. As the best interests of the child are to be a primary consideration, in application of Article 3 of the Convention, the adopted child should have the same rights as her'biological'sister, the mother's non-marital child. The interests of the child may be assessed by the legislature. Luxembourg law accepts that it is in the interests of children to be fully adopted by a married couple and not by an unmarried person. The court must therefore apply that statutory provision. ” 5. Judgment of the Court of Appeal of 6 July 2000 24. On 7 July 1999 the applicants appealed against the judgments of 11 February 1998, 1 April 1998 and 2 June 1999. 25. They requested the Court of Appeal to declare the judgment of the Huamango Family Court of 6 November 1996 enforceable in Luxembourg and to order that the forthcoming judgment be entered in the civil status registers. 26. In support of their appeal, the applicants maintained first of all that Article 367 of the Civil Code – a rule of strictly territorial application determining the conditions of an application for full adoption coming within the jurisdiction of the Luxembourg courts – was not a reason to dismiss an application for enforcement of a foreign decision, since the court dealing with the application to enforce the decision had no power of review and was not empowered to alter the effects of the adoption pronounced by the Peruvian court. They further maintained that under Article 370, final paragraph, of the Civil Code a foreign adoption decision could be enforced in Luxembourg provided it had been delivered by a competent court according to the rules on the conflict of laws and the procedures of the country of origin. Thus, the final paragraph of Article 370 was not a simple rule on jurisdiction but a rule on the conflict of laws. 27. The applicants also maintained their request that the preliminary question which they had formulated before the district court be referred to the Constitutional Court. 28. In a section entitled “ Public policy implications ”, the applicants contended that the procedure for securing recognition of the effects of a full adoption pronounced abroad differed from the procedure for pronouncement of an adoption in Luxembourg, so that the impact of the questions of public policy arose in different terms and did not have the same weight. Next, relying on the Convention on the Rights of the Child, they submitted that the best interests of the child consisted in favouring the effects of a full adoption, in particular the right to acquire Luxembourg nationality and to share in the succession of the adoptive family on the same basis as a legitimate or non-marital child. While they acknowledged that a new simple adoption could be made in Luxembourg, they emphasised that it would grant less substantial rights to the child, particularly in relation to succession and the acquisition of Luxembourg nationality. In the applicants'submission, it was specifically public policy that required enforcement, so that the adoptive child would be granted the same rights as her biological sister and so that legal calm rather than uncertainty would reign in the families. They cited a decision of the district court, which, in a different context, had held that an interference with the right for the father and mother to maintain relations with their children was not justified by one of the objectives set forth in Article 8 § 2 of the Convention. They contended that in this case the judgment at first instance – which gave priority to Luxembourg law over an international convention as a ground for refusing to order enforcement – penalised the minor child and was incompatible with Article 8 of the Convention. 29. By judgment of 6 July 2000 the applicants'appeal was declared unfounded. The Court of Appeal held, in the first place, the following : “ By way of preliminary point, it should be observed that while foreign judicial decisions on the status of persons enjoy immediate substantive effectiveness in the Grand Duchy of Luxembourg, provided only that they satisfy the relevant international procedural requirements, they none the less may and even must be enforced in order to render them incontestable and enforceable by execution and to enable the acts necessary to enforce them to be carried out. In this case, recognition of the Peruvian adoption decision is sought, not only to ensure that the adopted child has the same succession rights as those recognised by Luxembourg law to a legitimate or non-marital child, but also to avoid problems arising in the future as a result of the fact that the child has not lost Peruvian nationality by the effect of her adoption in her country of origin and, in the absence of a decision recognising the foreign judgment, does not acquire Luxembourg nationality, at least for the time being, and cannot in those circumstances benefit from the advantages conferred on nationals of the countries of the European Union. ” 30. The Court of Appeal then analysed the scope and significance of the final paragraph of Article 370 of the Civil Code and reached the following conclusion : “ The [District] Court was correct to take the view that the Luxembourg court dealing with the application to enforce the Peruvian judgment must ascertain whether the adoption was made in conformity with the Luxembourg rules on the conflict of laws, as provided for in Article 370 of the Civil Code, and to dismiss the application on the ground that the Peruvian judgment pronouncing full adoption in favour of an unmarried Luxembourg national is in flagrant contradiction with the Luxembourg law on the conflict of laws, which provides that the conditions for adoption are governed by the national law of the adoptive parent. It is therefore unnecessary to examine further the other conditions required for enforcement, namely conformity to international public policy and circumvention of the law. ” 31. The Court of Appeal also concluded that the applicants were wrong to rely on the Convention on the Rights of the Child, for the following reasons : “ Article 7 of that Convention, approved by the Law of 20 December 1993, provides in paragraph 1 that the child is to be registered immediately after birth and is to have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. Article 21 provides that States Parties that recognise and/ or permit the system of adoption are to ensure that the best interests of the child shall be the paramount consideration, and sets out the obligations placed on the Contracting States in that regard (paragraphs (a) and (b) of that article). The Court agrees with the Attorney General's representative, who maintains ... that Articles 7 and 21 cannot be applied directly in order to secure recognition of a foreign full adoption decision pronounced in breach of our national laws. ... The [applicants] are wrong to rely on the abovementioned Articles of the Convention to secure recognition of a foreign adoption made in compliance with its legal rules, which, it is emphasised, are very strict, but in breach of Luxembourg law, which rightly or wrongly maintains the principle that full adoption by an unmarried person is prohibited, since Article 21 does not require the States Parties to alter their national legislation in that sense, a fortiori because it is not established that such a change in the legislation would be in the paramount interest of the child, quite apart from any political or moral considerations which influence the legislative choices according to current thinking. Article 7, on which the applicants rely, concerns at most only the effects of the adoption, but has no bearing on whether an adoption decision satisfies the relevant international procedural requirements. ... ” 32. Last, the Court of Appeal considered that the first-instance court had been correct not to deem it appropriate to refer the preliminary question formulated by the applicants to the Constitutional Court. 6. Judgment of the Court of Cassation of 14 June 2001 33. On 8 December 2000 the applicants appealed on a point of law. 34. On 14 June 2001 the Court of Cassation dismissed the appeal, for the following reasons : “ The first ground of appeal, alleging “breach, if not misapplication of the law, in the present case of Article 370, final paragraph of the Civil Code, which provides that in the event of conflict between the rules of competence prescribed respectively by the national law of the adoptive parent and by that of the adopted child, the adoption is validly concluded according to the procedure prescribed by the law of the country in which the adoption took place and before the authorities competent under that law, in that the judgment considered that the word'procedure'had only the meaning of'procedural rule'and did not include the substantive conditions whereas, first part, the text of Article 370 speaks in unequivocal terms of'procedures'and not restrictively of'procedural rules', so that the scope of the legislative text cannot be restricted by the implicit addition thereto of words which it does not contain, in this case the word'rule'; second part the word'procedure'employed by the legislature in the specific context of the final paragraph of Article 370 is not limited to procedural rules in the strict sense, but covers both the latter and the substantive rules, and therefore legal'procedures'in the broad, flexible and general sense, the legislature having clearly displayed its intention to properly encompass in the word'procedure'both the substantive conditions and procedural conditions properly so called”; But ... in agreeing with the court of first instance that the Peruvian full adoption decision was delivered in contradiction to the Luxembourg law on the conflict of laws, which provides in paragraph 2 of Article 370 of the Civil Code that the conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent, the Court of Appeal made a correct application of the law without being in breach of the legislative text referred to in the two parts of the ground of appeal; ... it follows that the ground of appeal cannot be upheld; The second ground of appeal, alleging “ misapplication, if not violation of Article 8 of the [Convention], which provides that there is to be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others, and of Article 89 of the Constitution, which provides that every judgment must state the reasons on which it is based, in that the judgment did not even examine the appellants'plea based on Article 8 paragraph 2 of the [Convention], when the best interests of the child ought to have led the decision under appeal, on the assumption that Article 370, final paragraph, of the Civil Code is not to be interpreted as meaning that an adoption lawfully concluded abroad cannot be repudiated, to refuse to apply the Luxembourg domestic rule, which prevents an unmarried woman of Luxembourg nationality from fully adopting a minor child, in such a way as to apply Luxembourg law to her, and that the intention of the Luxembourg legislature to require an unmarried woman to marry if she wishes to undertake full adoption of a child, in such a way as to ensure that that child enjoys all the privileges attached to Luxembourg and Community nationality constitutes an unnecessary interference with family life ... ” But ... first, the Court of Appeal was not required to respond to the ground of appeal set out in the document initiating the appeal under the heading “ Public policy implications ”, as that question had become devoid of purpose by the very effect of its decision not to apply the foreign law; ..., second, owing to their dubious, vague and imprecise nature, the arguments relating to Article 8 paragraph 2 of the Convention on Human Rights contained in the document initiating the appeal did not constitute a ground of appeal requiring a response; Whence it follows that the plea cannot be upheld. ” B. Proceedings before the administrative courts under the Hague Convention of 29 May 1993 on protection of children and cooperation in respect of intercountry adoption 35. On 5 August 2003 the applicants requested the Minister for the Family, Social Solidarity and Youth to take the necessary measures to enable the adoption pronounced by the Peruvian judgment of 6 November 1996 to be entered as a full adoption recognised by the Luxembourg authorities in the civil status register with competence ratione territoriae in application of the Hague Convention of 29 May 1993. 36. On 12 August 2003 the Minister declared that the provisions of the Hague Convention were not applicable to the applicants'request. 37. On 13 September 2003 the applicants sought judicial review of that decision. 38. By judgment of 19 January 2004 the administrative court of first instance ( Tribunal administratif ) annulled the ministerial decision, for the following reasons : “ ... the [Hague Convention of 29 May 1993] was adopted by Luxembourg law on 14 April 2002 and entered into force on 1 November 2002 in the Grand Duchy of Luxembourg, on which date it is common ground that the Convention was already in force with respect to Peru; ... from 1 November 2002 the Hague Convention has therefore been in force between the two countries concerned by the present case: Peru, the State of origin, and the Grand Duchy of Luxembourg, the receiving State, as defined in Article 2 of the Convention; ... the Convention states in Article 41 that it is to'apply in every case where an application pursuant to Article 14 has been received after the Convention has entered into force in the receiving State and the State of origin'; ... Article 14 of the Convention states that'[p]ersons habitually resident in a Contracting State, who wish to adopt a child habitually resident in another Contracting State, shall apply to the Central Authority in the State of their habitual residence'; ... it follows from the Explanatory Report drawn up by Mr G. Parra-Aranguren, the Venezuelan representative in the proceedings of the 17 th Hague Conference which culminated in the Convention of 29 May 1993, and more particularly paragraphs 584 and 585 thereof (doc. Parl. 4820, page 95), that a second paragraph had indeed been envisaged at a particular time during the drafting of what became Article 41, but that that paragraph was abandoned for the reasons explained more fully in that report as follows:'584. Working document no. 100, submitted by the Permanent Bureau, suggested a second paragraph for the article with the following text: “ A Contracting State may at any time by declaration extend the application of Chapter V (Recognition) to other adoptions certified by the competent authority of the State of the adoption as having been made in accordance with the Convention”. The idea behind the proposal was to give a rule to answer the question as to the validity of adoptions already made in the Contracting States when a State becomes a Party to the Convention. 585. Some participants considered that proposal ambiguous and suggested its deletion or its clarification, at least, but others sustained it. The Observer for the International Commission on Civil Status observed that it was unnecessary and dangerous, because the formulation might permit a wicked conclusion, if interpreted a contrario, since the natural consequence of a State becoming a Party to the Convention is to recognise adoptions already made in the Contracting States. Therefore, the “declaration” provided by the second paragraph could be interpreted as permitting the non-recognition of such adoptions and, for this reason, the proposal was rejected'; ... ... for the purposes of application ratione tempore it is appropriate to distinguish the situation of the application properly so called of the Convention in the words of Article 41 concerning adoption procedures to be initiated and that relating to adoptions previously carried out, which by definition no longer have to follow the procedure provided for in Article 14 of the of the Convention, and raising more particularly aspects of recognition and re-entry on the competent registers of civil status; ... although the text of Article 41 gives rise to no doubt concerning the applicability of the Convention in all cases where an application referred to in Article 14, in initial act of the procedure there referred to, was received after the entry into force of the Convention in the receiving State and in the State of origin, reliance on that Convention for other aspects relating more particularly to the recognition and entry of adoptions previously carried out in the State of origin do not fall directly under the wording of Article 41; ... the fact that two States, by definition the State of origin and the receiving State, have become parties to the Convention and have adopted it in such a way that it has entered into force in both States means that these States have thereby adopted the provisions of the Convention as being henceforth required to be the general law, at a superior level, having to govern the respective relationships concerning the nationals of both States in adoption matters; ... the adoption of such a superior general law in adoption matters consists by the very organisation of the Convention, in the light of the objectives which it pursues, a favor adoptioni to which these two States have thus subscribed in the best interests of the adoptive children concerned; ... it follows that an application for recognition and entry in the relevant registers of civil status of an adoption carried out before the entry into force of the Convention in the State of origin is governed by the provisions of the Convention contained more particularly in Chapter V, entitled “Recognition and effects of the adoption ”, from the time when the relevant application, submitted not with a view to adoption but with a view to recognition and entry of an adoption which has already taken place, was submitted after the entry into force of the Convention in the receiving State and the State of origin; ... the applicant has also placed on the file a certificate issued by the competent authority of the Contracting State in which the adoption took place, capable of being read as being consistent with the Convention; ... it follows from all the foregoing developments that the contested ministerial decision was wrong ... to refuse to undertake a more thorough examination of the abovementioned application of 5 August 2003 by rejecting the application of the provisions of the Hague Convention of 29 May 1993, which had been in force between Peru and the Grand Duchy of Luxembourg since 1 November 2002; ... the contested ministerial decision must therefore be annulled for violation of the law; ... since preference should be given to any solution found at a non-contentious level and since the Minister did not afford herself the opportunity to examine the merits of the application in question more thoroughly, the case should be sent back to the Minister for further consideration ...; ” 39. On appeal by the Minister for the Family, Social Solidarity and Youth, the higher administrative court ( Cour administrative ) on 1 July 2004 varied the judgment of the administrative court of first instance and declared the action for annulment unfounded, for the following reasons : “ Upon reading the Hague Convention, it must be found that there is no clause as to the possible application of the provisions of that Convention in a case where, at the time of the facts, that is during the implementation of the adoption procedure, it was ratified by only one of the States involved in an intercountry adoption and entered into force only in that State. On the contrary, Article 41 of the Hague Convention expressly states that'[t]he Convention shall apply in every case where an application pursuant to Article 14 [of the Convention] has been received after the Convention has entered into force in the receiving State and the State of origin'. Furthermore, it should be observed that Article 14 of the Convention obliges persons wishing to adopt a child in another State to apply first of all to the Central Authority in the State of their habitual residence, and thereby to take the first step in an intercountry adoption procedure. In the light of those clear and precise provisions, it is impossible to grant the application as submitted to the Minister for the Family by the present respondents and seeking to have the Hague Convention applied to an intercountry adoption procedure which took place at a time when the Hague Convention was in force only with respect to the State of origin of the child to be adopted, namely, Peru, and not with respect to the receiving State of that child, namely, the State in which the adoptive mother was resident, that is, Luxembourg. That finding is supported by the fact that the mechanism as put in place by the Hague Convention, with the specific aim of ensuring recognition in the receiving State of an adoption carried out in the State of origin, is based on close cooperation between the competent authorities of both States thus concerned ... The fact that the certificate of conformity issued by the Peruvian central authority concerning the abovementioned adoption decision is similar to that required by ... the Hague Convention, for the purpose of ensuring that the adoption carried out in one of the Contracting States of the Hague Convention is recognised in the other Contracting States, does not in itself suffice to render the provisions of the Convention applicable and to ensure that the adoption carried out in Peru is recognised in Luxembourg, since by definition that certificate was unable to attest that all the formalities provided for by the Hague Convention had been complied with, since the procedure regulated in that Convention as being mandatory could not be followed when Luxembourg was not a party to the Convention at the time when the adoption procedure took place in Peru. ” C. Simple adoption procedure 40. In their observations, which were received at the Court on 18 February 2005, the applicants stated that they would “lodge in the near future an applicant for simple adoption according to Luxembourg law, as a precautionary measure”. At the hearing before the Court, they stated that that application had in the meantime led to a simple adoption judgment (delivered on an unspecified date) which did not take account of the full adoption pronounced in Peru. i. Conditions to be satisfied by the adoptive parents 44. As a matter of principle, adoption is by a married couple. Thus, Article 367 of the Civil Code provides as follows : “ An application to adopt may be made by a married couple who are not judicially separated, one of whom is at least twenty-five and the other at least twenty-one years old, on condition that the adoptive parents are fifteen years older than the child whom they propose to adopt and that the child to be adopted is under the age of sixteen. ” 45. Full adoption by a single person is an exceptional situation. The law provides for only one possibility : that of full adoption applied for by a spouse in favour of the child of his or her spouse. ii. Effects of full adoption 46. Article 368 of the Civil Code provides as follows : “ Adoption shall confer on the adopted child and on his or her descendants the same rights and obligations as though he or she were born of the marriage of the adoptive parents. That legal parent-child relationship shall replace his or her original parent-child relationship and the adopted child shall cease to belong to his or her blood family ... ” 47. The adoptive parents alone are invested, with respect to the adopted child, with all the rights of parental authority. 48. Prior to the Law of 23 December 2005, adoption conferred on the child the surname of the husband. Since that Law, the effect of Article 57 in conjunction with Article 368-1 of the Civil Code is that the adoptive couple choose the name to be given to the adopted child; the child may acquire either the name of his or her father, or the name of his or her mother, or both names together, in whichever order the adoptive parents may choose, with a maximum of one name for each parent. 49. The child has the same inheritance rights in respect of his or her adoptive parents as the legitimate children. From a taxation point of view, the adoptive child is not required to pay inheritance tax where he or she inherits in the direct line. 50. Under section 2 ( 1 ) of the Law of 22 February 1968 on nationality, as amended, a child who has been fully adopted by a Luxemburger obtains Luxembourg nationality. Bill no. 5620 on Luxembourg nationality, which is currently before Parliament, confirms the terms of that provision. 51. The same mutual maintenance obligations are created between the adoptive parents and the adopted child as those existing between blood relatives. 52. The transcription of the adoption judgment takes the place of a birth certificate for the adopted child. It contains no indication of the child's original filiation. The original birth certificate is marked “ adoption ”. b) Simple adoption 53. The principles and effects of simple adoption may be summarised as follows (G. Ravarani, op. cit. ). 54. Although it constitutes the general rule for adoption, simple adoption is much rarer than full adoption. It normally occurs only where full adoption is impossible, for example where the person to be adopted is over the age of 16 or where the person wishing to adopt is single. i. Conditions to be satisfied by the adoptive parents 55. The conditions are the same as in the case of full adoption, except that simple adoption by one person is possible. More than one person cannot adopt the same child, except in the case of a married couple. Article 344 of the Luxembourg Civil Code provides the following : “ An application to adopt may be made by any person over the age of twenty-five. ” ii. Effects of simple adoption 56. While simple adoption in many respects resembles full adoption – it confers a new family on the adopted child –, it differs from full adoption on one essential point: the adopted child does not lose his or her family of origin. Article 358 of the Civil Code provides as follows : “ The adopted child shall remain in his or her family of origin and keep all his or her rights within that family, including hereditary rights. ” 57. Like full adoption, simple adoption has the effect of integrating the adopted child into his or her new family. However, the adopted child is not fully assimilated to a biological descendant, even though a link of kinship is created between the adoptive parent and the adopted child. The law further provides that this link extends to the adopted child's descendants (Article 361 of the Civil Code). Since the law makes no specific provision in that regard, however, it must be acknowledged that the adoption does not create a link of kinship between, on the one hand, the adopted child and the ascendants of the adoptive parent and, on the other, the adopted child's collaterals. 58. As regards parental authority, Article 360 of the Civil Code sets forth the following provisions : “ The adoptive parent alone has, with respect to the adopted child, all the rights of parental authority, including the right to administer the adopted child's estate and to consent to the adopted child's marriage. Where the adoption was by a married couple or where the adoptive parent is the spouse of the adopted child's father or mother, the rights referred to in the preceding paragraph shall be exercised in accordance with the rules applicable to the legitimate father and mother. Where there is only one adoptive parent or where one of the two adoptive parents dies, the adopted child's estate shall be administered in accordance with the law and under the supervision of the court. Where the adoptive parent or the survivor of the adoptive parents dies, is declared absent or loses the right to exercise parental authority, a guardianship order shall be made. ” 59. Article 359 of the Civil Code provides that simple adoption confers the adoptive parent's name on the adopted child. In the event of adoption by a married couple, the same rules as those applicable to full adoption apply. 60. Article 363 of the Civil Code establishes the principle that the adopted child and his or her descendants have the same inheritance rights in the adoptive parent's family as a legitimate child. Conversely, the following exceptions are applicable. – Under Article 363, the adopted child and his or her descendants are not entitled to receive a reserved portion of the estate of the adoptive parent's ascendants. – If the adopted child dies without descendants or a surviving spouse, the assets given by the adoptive parent or inherited under the adoptive parent's estate revert to the adoptive parent or to his or her descendants, provided that those assets still exist in kind at the time of the adopted child's death. If the adoptive parent has died and left no descendants, those assets belong to the adopted child's relatives (that is to say, his or her descendants or the members of his or her family of origin), to the exclusion of the adoptive parent's other heirs (Article 364). The other assets left by the adopted child go to his or her family and not to the adoptive parent's family (Article 364). Article 364 paragraph 2 provides that “if, during the lifetime of the adoptive parent and after the death of the adopted child, the children or descendants left by the adopted child die without issue, the adoptive parent [may recover the assets which he or she had given to the adopted child ], but the right to do so is personal to the adoptive parent and cannot be transferred to his or her heirs, even in the descending line.” – As for the tax regime applicable to the succession, whereas children who have been fully adopted are treated in the same way as the legitimate descendants, Article III of the Law of 13 July 1959 amending the rules on adoption, the fiscal provisions of which have not been repealed, draws a distinction between different categories of persons who have been the subject of simple adoption: those in the first category listed (namely (i) adopted childs who are the children of a first marriage of the adoptive parent's spouse and those children's descendants, and also non-marital children adopted by their progenitor and those children's descendants; (ii) adopted childs who are children of persons killed by enemy action or war orphans; (iii) adopted childs who during their minority and for six years or less have received care and assistance without interruption from the adoptive parent, and their descendants; and (iv) adopted childs whose adoption was applied for before they reached the age of 16 and their descendants) are treated in the same way as legitimate descendants. Those in the second category (namely, all those not specially listed by the law) do not enjoy the same tax advantages; the law treats them as nephews and nieces, with the consequence that tax at 9% is applicable in their case. 61. Under section 2( 2 ) of the Law of 22 February 1968 on Luxembourg nationality, as amended, a child aged under 18 who has been the subject of simple adoption by a Luxemburger acquires Luxembourg nationality where he or she is stateless or where, following the adoption, he or she loses his or her nationality of origin by operation of the foreign law. Under sections 19 and 20 of that Law, a child who was the subject of simple adoption by a Luxemburger and who at that time did not lose his or her nationality of origin may acquire the status of Luxemburger by opting to do so, provided that he or she has been habitually resident in the Grand Duchy during the year preceding the declaration of intent to exercise the option and has been habitually resident there for at least five consecutive years. Section 2 of Bill no. 5620 on Luxembourg nationality, which is currently before Parliament, provides as follows : “ A child under the age of 18 who has been the subject of simple adoption by a Luxemburger ... shall acquire Luxembourg nationality; ... ” 62. The adopted child and his or her descendants have a duty to maintain the adoptive parent if he or she is in need, and the adoptive parent has a duty to maintain the adopted child and his or her descendants. If the adopted child dies without leaving descendants, his or her estate has an obligation to maintain an adoptive parent who is in need at the time of the adopted child's death (Article 362 of the Civil Code ). 63. Unlike the position in the case of full adoption, there is no need to draw up a new document which does not state the adopted child's original filiation. The adopted child keeps his or her original birth certificate, but it – and, where appropriate, his or her marriage certificate and the documents relating to the civil status of his or her legitimate descendants born before the adoption – will bear a note in the margin indicating the adoption. c) Conflict of laws 64. Article 370 of the Luxembourg Civil Code provides the following : “ Adoption is open to Luxemburgers and to foreigners. The conditions that must be satisfied in order to adopt are governed by the national law of the adoptive parent or parents. In the case of adoption by a married couple who are of different nationalities or are stateless persons, the applicable law is that of the place of joint habitual residence at the time of the application to adopt. The same law is applicable where one of the spouses is a stateless person. The conditions that must be satisfied in order to be adopted are governed by the national law of the adopted child, save where the adoption confers the nationality of the adoptive parent on the adopted child, in which case the conditions are governed by the national law of the adoptive parent. The effects of the adoption are governed by the national law of the adoptive parent or parents. Where the adoption is by a married couple who are of different nationalities or are stateless persons, or where one spouse is a stateless person, the applicable law is that of the place where both spouses were habitually resident at the time when the adoption took effect. In the event of conflict between the rules on competence laid down by the national law of the adoptive parent and that of the adopted child, the adoption is validly concluded according to the procedures prescribed by the law of the country in which the adoption took place and before the authorities competent under that law. ” d) Case-law on the recognition of an adoption pronounced abroad 65. In a recent case a married couple had obtained from the Attorney General's Department a certificate attesting that they satisfied all the statutory conditions to undertake a full adoption in Peru. The husband died during the proceedings and the widow obtained from the Attorney General's representative a certificate of eligibility to adopt on her own behalf, so that the Peruvian authorities were inclined to entrust the child to her. The Luxembourg District Court declared the widow's application to adopt inadmissible, on the ground, inter alia, that the document attesting to her eligibility to adopt had not been drawn up by the competent authority of the receiving State. However, in a judgment of 28 June 2006, the First Division of the Court of Appeal, sitting as a civil court, decided as follows : “ ... the appellant produced the documents relating to the adoption pronounced in Peru ..., namely the adoption decision ... and also the certificate of conformity of the adoption with the Hague Convention referred to in Article 23(1) of [the Hague Convention]. It follows from that certificate of conformity, issued on 15 February 2005, that the Peruvian authorities were mistaken as to the identity of the competent authority of the receiving State ..., which is the district court of the place of residence of the future parent(s) and not the Attorney General's representative attached to that court, ... as to the nature of the document issued on 4 January 2005 by the Attorney General's representative, which was to be understood as a certificate of eligibility to adopt ... and not as a document expressing the agreement of the central authority of the receiving State that the adoption procedure could continue ... However, according to [the Hague Convention], the certificate referred to in Article 23 guarantees the international effectiveness of the adoption. It is the irrebuttable proof of the lawfulness of the adoption decision, recognition of which in the Contracting States can be refused only if the adoption is manifestly contrary to its policy in the light of the best interests of the child ... Contrary to the general rule, whereby foreign decisions relating to the status and capacity of persons, which are not required to be enforced, are subject to an ex post facto control ascertaining the competence of the foreign authority and the correctness of the procedure followed, and also the competence of the law applied to the merits in accordance with the rules on the conflict of laws of the receiving country and, last, public policy, the convention system of recognition by operation of law ascertains exclusively the conformity of the adoption with public policy within the meaning of the private international law of the receiving State ... In order for an adoption to be manifestly contrary to public policy within the meaning of the private international law of the requested State, it must constitute a flagrant breach of the fundamental values and principles of that State. Furthermore, even if it is established, that breach should still be tempered by consideration of the best interests of the child. Recognition cannot be refused on the ground that the certificate drawn up by the authorities of the country of origin disregards a breach, even a very serious breach, of the provisions of the Convention. ... The mistakes made by the Peruvian authorities as to the Luxembourg authorities .. and as to the scope of the certificate of eligibility to adopt issued ... by the Attorney General's representative constitute a serious breach of the provisions of the Convention, but have no bearing on the fundamental principles which govern adoption in Luxembourg law. The fact that the Peruvian decision has the effects of a Luxembourg full adoption, notably by severing the child's pre-existing filiation and by its irrevocable nature, is not prejudicial to Luxembourg's international public policy. Under the terms of Article 370, paragraph 5, of the Civil Code, the effects of the adoption are governed by the national law of the adoptive parent or parents. Article 26 of the [Hague Convention] varies that provision by providing that the recognition of an adoption includes not only recognition of the filiation between the child and his or her adoptive parents and parental responsibility for the child, but also the termination of the pre-existing filiation between the child and his or her mother and father, if, as in the present case, the adoption has that effect in the State where it was made. That particular effect of adoption cannot be called into question in the requested State. In addition, Article 26(2) requires that any State in which a full adoption produces its effects is to confer on the child rights equivalent to those resulting from the provisions of its own law on full adoption, irrespective of the law applicable in that State to the effects of the adoption ... That may have the effect of requiring the receiving State to recognise the termination of the ties between the child and his or her family of origin, even if such an effect would not be produced if the adoption had taken place in that State. The aim was to give the child the most favourable status ... As it must be recognised by operation of law, the Peruvian adoption decision produces binding effects. ... ” 3. Elements of comparative law a) The capacity of unmarried persons to adopt under the laws of the member States 66. Among the forty- six member States of the Council of Europe, none prohibits adoption by unmarried persons outright. 67. Ireland and Italy accept adoption by unmarried persons in very exceptional circumstances. Iceland and Lithuania permit unmarried persons to adopt a child in “exceptional circumstances”. 68. A second group of countries permit adoption by unmarried persons, but only if certain conditions are met. Thus, in Armenia, only unmarried women may adopt; in Malta, an unmarried man cannot adopt a female child. 69. In a third group of countries, including Luxembourg, adoption by unmarried persons is permitted generally, but their capacity to adopt is limited to an adoption which does not entail the termination of the family ties with the family of origin. Thus, in Georgia, Lithuania and Russia, adoption by an unmarried person does not terminate the relationship with the original parent of the opposite sex to that of the adoptive parent. 70. In the other European countries there are no restrictions on adoption by unmarried persons. b) The effects of recognition of an adoption judgment delivered abroad in the laws of the member States 71. The member States do not confer the same effects on an adoption judgment delivered abroad. While some States accept that the judgment delivered abroad produces the same effects in the internal legal order as it would produce in the State in which it was delivered, other States will authorise the parties to make application for the effects to be “adapted” to domestic law and, last, a third group of States will accept the production of effects only according to their own domestic law. 72. A panorama of comparative law makes it possible to group the member States in two distinct categories : i. States which would refuse even to recognise the foreign judgment in circumstances such as those of the present case 73. First, in Ireland and Italy the refusal would be based on the prohibition of full adoption by single persons. 74. Second, in certain Nordic countries the refusal would be based on a prohibition on principle of adoption carried out according to the procedure followed in the present case by the first applicant. Where a Danish, Finnish, Icelandic or Swedish citizen wishes to adopt a child abroad, he or she must first seek authorisation from the national authorities of his or her own country before being able to contact the authorities of the State in which he or she wishes to adopt a child. Where that prior authorisation is lacking, the domestic laws of the Nordic countries uniformly provide that the judgment delivered abroad will not be recognised. ii. States which would agree to recognition of the foreign judgment in circumstances such as those of the present case 75. In some States the foreign judgment would produce the effects determined by the domestic law of the State in which it was delivered (that is the case in Switzerland and Estonia ). 76. Next, in other States, the effects of the foreign judgment could be adapted to national law (that is the case in the Netherlands ). 77. Last, in the majority of States the foreign judgment would produce only the effects determined by the national laws of the countries in which it would be enforced. Thus, irrespective of the effects which a judgment may produce in the country in which it was delivered, in the domestic law of the member States it will produce only the effects authorised by national law. The national court will therefore have to adapt the foreign adoption to one of the modes of adoption recognised by domestic law. The foreign adoption will therefore produce the same effects as an adoption under domestic law. That is so, in particular, in Germany, Belgium, Bulgaria, Croatia, Spain, France, Malta, Portugal and Romania. B. Elements relating to the proceedings before the Luxembourg courts 1. Guiding principles of the proceedings before the tribunals of fact 78. Among the guiding principles of the proceedings, Article 62 of the new Code of Civil Procedure, which entered into force on 16 September 1998, provides as follows : “ The court may invite the parties to provide any legal explanations which it may deem necessary for the outcome of the case. ” 2. Direct applicability of the Convention in domestic law 79. The rights guaranteed by the Convention and the Protocols thereto may be invoked directly before the Luxembourg courts. Thus, the Court of Cassation has ruled as follows (Cass. 17.1.1985, no. 2/85) : “ ... the rules laid down in Articles 8 and 14 of the Convention, read together, not only create obligations on the part of the Contracting States but also produce direct effects in the internal legal order for individuals and confer on litigants individual rights which the national courts must safeguard. ” | This case concerned a civil action seeking to have an adoption decision pronounced in Peru declared enforceable in Luxembourg. The Luxembourg courts had dismissed the application as the Civil Code made no provision for full adoption by a single woman. |
155 | Medically-assisted procreation | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1967. After numerous previous failed attempts, the applicant became the mother of a child, conceived as the result of an in vitro fertilisation (IVF) procedure with donated gametes. The procedure was performed in S. Medical Centre in Bucharest; and produced nineteen embryos, three of which were implanted on 8 June 2008. The remaining sixteen embryos obtained on the same occasion were frozen until the applicant was considered fit by her physician to undergo another pregnancy. A protocol was concluded between the applicant and S., in which the applicant acknowledged that she had been informed that in 15-20% of cases, after thawing, the embryos proved not to be viable, and that if that were the case the embryo transfer would be impossible. 8. According to a document issued by the National Transplant Agency (“the NTA”), on 15 July 2009 the S. Medical Centre was authorised to function as a bank for genetic material. However, the circumstances in which that document was issued are currently under the scrutiny of the domestic criminal court, in view also of the fact that it was the Ministry of Public Health, and not the NTA, which had exclusive competence to give such authorisations. 9. On 24 July 2009, the Directorate for the Investigation of Organised Crime and Terrorism attached to the Prosecutor General’s Office (DIICOT) closed the S. Medical Centre, seized all the genetic material found there and deposited it at the Mina Minovici Institute of Forensic Medicine (IFM). This decision was not contested before the courts. 10. On 25 August 2009, the applicant wrote to DIICOT in her capacity as “owner of the sixteen embryos”, expressing concerns as to the state of her frozen embryos and asking to be informed of the practical procedure to be followed in order to urgently retrieve her embryos. 11. On 7 September 2009, the applicant was informed by DIICOT that it was not aware of any technical means of identifying the embryos in question, given that an inventory was still being made of all the material seized and no document relating to the applicant’s embryos had been identified. In any event, in order to be able to retrieve her genetic material from the Institute, the applicant was advised to appoint a doctor specialising in embryology, who would then contact the IFM for that purpose. 12. In attempts to find an embryologist the applicant addressed her request to the Ministry of Health, the Embryologists’ Association and the National Doctors’ Association. In its reply, the Ministry of Health gave the applicant a list of the medical institutions accredited as banks for genetic material, by virtue of ministerial Order no. 1225 of 1 July 2008; the S. Medical Centre and the IFM were not mentioned in the list. The Ministry also informed the applicant that it could not intervene in any way in the contractual relationship between her and S., assuming that such a contract existed and included specific provisions as to who could retrieve the embryos and under what circumstances. Referring to the letter of 7 September 2009 from DIICOT, the Ministry suggested that the applicant should contact S. and, on the basis of the contract she had concluded with the clinic, ask for support in identifying and retrieving her embryos. The Embryologists’ Association replied to the applicant on 12 October 2009, informing her that an embryo transfer could be performed only by a specialist in assisted reproduction, and that such transfers could not be carried out until the relevant embryos had been properly identified. 13. The applicant finally contacted two doctors from the P. Clinic in Sibiu (300 km from Bucharest). On 2 November 2009, in accordance with the legal requirements, the P. Clinic requested the authority of the NTA to perform the retrieval, but received no answer. The request was reiterated on 29 January 2010; on 1 February the NTA informed the P. Clinic that it could not grant the requested authority, since such authority could only be given in respect of a tissue and cell bank accredited by the NTA, which the IFM was not. 14. On 10 February 2010, DIICOT informed the applicant that the NTA’s refusal was not binding on DIICOT; the IFM had been appointed as the legal custodian of the genetic material pending a criminal investigation. Once the investigation was terminated and the S. Clinic was indicted, the file was to be sent before the criminal courts on 24 February 2010. Consequently, an order was issued authorising the applicant to retrieve her embryos by 25 February 2010, since after that date the Institute for Forensic Medicine would cease to act as a deposit bank appointed by the investigating authorities. The applicant was required to be accompanied by an embryologist and to provide a special container with liquid nitrogen for the transfer. 15. The applicant managed to obtain from a clinic in Austria a special container with liquid nitrogen of the kind required for such transfers and asked the clinic to carry out the transfer. On 12 February 2010, the P. Clinic informed the applicant that the NTA had refused to consent to the transfer for the following reasons: the IFM had never been authorised by the NTA to store such materials and therefore there could be no guarantee as to the quality of the material stored there (against contamination, deterioration, and so on); moreover, the storage of such material in the Institute did not comply with the legal requirements (Order of the Minister of Public Health no. 1763/2007) concerning the traceability of the genetic material. In view of the NTA’s refusal, of the fact that the P. Clinic carried out its activities under the authority of the NTA, and in so far as it could not guarantee the quality and security of the genetic material, the clinic informed the applicant that it could not proceed with the retrieval. 16. On 19 February 2010 the applicant wrote again to DIICOT, asking it to issue an order allowing the IFM to continue to store her embryos until the NTA had consented to their retrieval. As justification of the need for such an urgent measure, the applicant pointed out that an inability to transfer the embryos would have serious repercussions on the right to life of her embryos and on her right to have a family. On the same day, the applicant sent a similar letter to the NTA, asking it to re-evaluate the circumstances of her case and consequently to authorise the transfer of her embryos to the P. Clinic. 17. The NTA replied on 23 February 2010, informing the applicant as follows: the IFM had been appointed as custodian in complete disregard of the legal provisions of Directive 2004/23/EC and of Article 148 (4) of the Health Reform Act (Law no. 95/2006); the IFM had never been accredited, nor had it been given approval by the NTA to operate as a bank for genetic material; the S. Medical Centre had been accredited to operate as a bank of genetic material only on 15 July 2009, and not in June 2008, when the embryos had been frozen and stored; the Code of Criminal Procedure, invoked by DIICOT, did not provide any safeguards as to the security and safety of the embryos while they were stored at S. (for one year) and subsequently at the IFM (for six months). The NTA also contended that it did not have any information regarding the way in which the embryos had been transported from S. to the IFM, and was thus unable to guarantee that the minimum sanitary conditions had been complied with. The NTA could therefore not authorise the transfer of the embryos from the IFM to another clinic, either within Romania or internationally; furthermore, according to the provisions of Article 19 (3) of Directive 2004/23/EC, “all tissue and cells that do not comply with [the legal] provisions shall be discarded.” A. Proceedings before the Court under Rule 39 18. On 18 February 2010, the applicant requested the Court under Rule 39 of the Rules of Court to direct the Romanian authorities to allow her to retrieve her sixteen embryos stored at the Institute of Forensic Medicine. 19. On 22 February 2010, the President of the Chamber to which the case had been allocated decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government of Romania, under Rule 39 of the Rules of Court, that the embryos should not be destroyed after 25 February 2010, for the duration of the proceedings before the Court. The President also decided to request the Government, under Rule 54 § 2 (a) of the Rules of Court, to submit information as to the legal status of the embryos after 25 February 2010 and on the domestic law and procedure which would allow the applicant to obtain a court transfer order quickly. 20. In reply, the Government informed the Court as follows. 21. In its letter of 26 February 2010, the IFM informed the Government that it was merely the authorised depository of a receptacle seized by DIICOT from S., and that its only obligation was to make sure that the receptacle was preserved at a temperature of -80 degrees Celsius. The IFM therefore could not dispose of the biological material stored in the receptacle in any way. 22. The Ministry of Public Health informed the Government on 8 March 2010 that they had asked the IFM to take all necessary measures to adequately preserve the applicant’s embryos. The Ministry also asked the NTA to share with the IFM all relevant information concerning the appropriate procedure for preserving the above-mentioned embryos. 23. With regard to the information required under Rule 54 § 2 (a), the Government appended the letter of 8 March 2010 from DIICOT, which stated that the applicant’s request to have her genetic material returned had already been granted by the prosecutor on 12 November 2009. The decision had been taken after the applicant’s embryos had been identified on 5 November 2009; the applicant had been given until 25 February 2010 to retrieve her embryos, the same deadline having been set for four other individuals who were in a situation similar to the applicant’s, in view of the necessity of avoiding repeated interferences with the contents of the receptacles and the fact that since an indictment had already been issued, the investigation authorities could no longer pay the IFM the cost of storage. DIICOT also informed the Government that the seizure, transport and handover of the genetic material to IFM had been carried out with the agreement of the Ministry of Public Health, whose representative – the manager of the NTA at that time – had cooperated directly with the investigation authorities. 24. In conclusion, the Government contended that the applicant already had a decision allowing the transfer of the embryos, which could be carried out at any time provided the applicant was accompanied by an embryologist and had the appropriate receptacle. 25. In response to the Government’s reply, the applicant asked the Court to note that it was not specified whether the applicant would be able to retrieve her embryos in the absence of authorisation from the NTA. In practice, as she had already shown, the embryo transfer was not possible unless the NTA authorised it. B. Proceedings seeking to obtain authorisation for the embryo transfer 1. Request lodged with the criminal courts 26. On 20 April 2010, the applicant formulated before the Bucharest County Court civil claims in the criminal proceedings pending before the domestic courts following the indictment issued by DIICOT (see paragraph 14 above); she thus asked the court to allow an embryo transfer from the IFM to a Romanian or foreign authorised clinic. The applicant’s request was dismissed on 6 July 2010; the court considered that given that the prosecutor’s decision of 12 November 2009 had already granted her claim, the actual implementation and enforcement of the decision exceeded the framework of the criminal trial. The court also held that the applicant had the opportunity, if she so wished, to contest the NTA’s refusal to authorise the embryo transfer before the civil courts. The applicant contested this ruling; on 23 July 2010 her appeal was dismissed as inadmissible by the Bucharest Court of Appeal. In the court’s reasoning it was stated that there was no legal basis to respond to her request within the criminal proceedings, the civil courts having jurisdiction to examine her complaints. In his dissenting opinion, Judge D.D. estimated that the applicant’s request was well founded, in so far as, in spite of the prosecutor’s decision ordering the restitution of her embryos, the authorities were refusing to implement the decision. Having regard to the fact that the confiscation of the embryos was carried out within criminal proceedings, it was only natural that the restitution should also be carried out within the same proceedings. At the same time, considering that the applicant could not be held responsible for the confiscation, which had been ordered by the investigating authorities in the absence of any authorisation from the NTA, it was excessive to ask the applicant to pursue yet another set of proceedings in order to be able to obtain authorisation for transfer from the NTA. 2. Request lodged before the administrative courts 27. On 28 July 2010 the applicant lodged with the Bucharest Court of Appeal a request seeking to obtain, in accordance with the provisions of Law no. 554/2004 regulating administrative proceedings, the NTA’s authorisation for the transfer of her embryos to a specialised and authorised clinic, whether in Romania or abroad. In their defence, the NTA reiterated their arguments, according to which the fact that the embryos had been deposited firstly at S., and then at the IFM, where they had been transported under unknown conditions, neither of the two institutions being at the time accredited as banks for genetic material, created uncertainty with regard to the safety and quality of the embryos (see also paragraph 17 above). In such circumstances, it was not possible to authorise transfer under the relevant legislation. Furthermore, if any clinic from Romania agreed to deposit the sixteen embryos, the NTA would have to revoke that clinic’s accreditation for non-compliance with the law. The applicant’s request was dismissed as ill-founded on 10 December 2010. The court considered that in view of the relevant legislation, requiring specific standards of quality and safety with regard to the genetic material and in so far as neither the S. Clinic at the time of the original deposit of embryos nor the IFM, was accredited or authorised to function as banks of genetic material, the NTA’s refusal was justified and in accordance with the law. 28. The applicant contested this judgment before the High Court of Cassation and Justice, reiterating that according to the Government’s submissions before the Court, the transfer of the embryos from the S. Clinic into the IFM was carried out with the approval of the Ministry of Health and of the NTA’s manager; in that respect, the NTA’s refusal to authorise a further transfer appeared unjustified. Furthermore, the applicant’s few visits to the IFM for the purposes of checking the state of her embryos revealed that the embryos were being kept in precarious conditions, in the absence of any trained staff able to properly supervise their preservation. 29. The High Court gave its ruling on 17 May 2011, allowing the applicant’s request and obliging the NTA to authorise the transfer of the sixteen embryos from the IFM to an authorised clinic in Romania or abroad. In its reasoning, the court mainly held that in so far as the NTA’s attribution was to coordinate the activities of procurement, processing, preservation, storage, validation and distribution of human tissue and cells in Romania, there was no legal ground for it to interfere in the implementation of the prosecutor’s decision to restore the embryos. The fluctuating attitude of the NTA concerning its participation and/or cooperation with the criminal investigation authorities, namely, confirming that the retrieval of the embryos from S. had been done with the approval of the NTA’s manager, while also holding that the transfer had been made without its consent, proved once more that the NTA was confused and uncertain about the scope of its own authority. The NTA’s cooperation with the criminal investigation authorities was certain, as it came out especially from the observations submitted by the Government’s Agent before the Court (see paragraph 23 above). Such cooperation was, in any event, natural, having regard to the specific nature of the confiscated goods. In this context, the NTA should have advised the investigation authorities to deposit the embryos in an authorised clinic, which they did not do. On the contrary, the NTA proved to be excessively formalistic only when it came to the restitution of the embryos to the applicant, considering, unfoundedly, that it was within its competence to intervene in the enforcement of the prosecutor’s decision: “This behaviour on the part of the NTA breached the applicant’s right to retrieve her embryos and to make use of them as urgently as possible, in view of the special characteristics of the genetic material and also of the applicant’s age, in the context of her desire to become a mother.” 30. The NTA’s allegations, that in 2008, when the applicant underwent the IVF, she did not comply with the relevant legal requirements, were not in themselves relevant, in so far as the criminal proceedings regarding the activity of the S. Clinic were still pending; moreover, in 2008, when the applicant deposited her embryos at S., the clinic was in the process of being accredited, as shown by the inspections organised to that end on 24 June 2008, and 15 April and 13 July 2009 by the NTA and the Department for the Control of Public Health, culminating with the accreditation apparently having been granted to the clinic by the NTA on 15 July 2009. In spite of all these factors, and of the fact that the prosecutor decided that the embryos should be given back to the applicant, the NTA unjustifiably intervened and blocked the restitution procedure; the NTA unlawfully arrogated to itself an authority it did not have, while also threatening any medical institution which could have received the embryos even without the NTA’s authorisation that in such a case their licence would be suspended or even revoked. Furthermore, the NTA could not cite any doubt as to the security and quality of the genetic material because it had been deposited at the IFM, an unauthorised clinic, having regard to the fact that at the moment of the deposit their agreement had been given, and afterwards, following the Court’s request that the embryos should be preserved and protected pending the proceedings before this Court, the NTA was expressly solicited by the Ministry of Health to provide expertise so as to satisfy the Court’s request. Referring to the case of Ternovszky v. Hungary (no. 67545/09, 14 December 2010), the High Court held that when there was no domestic law able to adequately define the specific circumstances in the relationship between an individual and the state, the latter was bound to protect fundamental human rights, such as, in the present case, the right to respect for private life and the right to life. For this reason, the court considered that: “By its obstructive attitude, the NTA infringed the applicant’s rights and interests linked to the right to a private life and the right to life, by not properly balancing the public interest that the NTA is bound to protect and the legitimate interests of the applicant.” It therefore allowed the applicant’s claims as formulated, holding that “the NTA was obliged to authorise the transfer of the sixteen embryos from the IFM to an authorised and specialised clinic in Romania or abroad, a clinic which would be able to receive the embryos in its bank and which would be able to assist the applicant with the desired embryo transfer.” 3. Enforcement of the judgment of 17 May 2011 31. In accordance with the High Court’s ruling, on 15 June 2011 the NTA issued a decision in which it “authorised the transfer of the sixteen embryos from the IFM Mina Minovici to an authorised clinic in Romania, in accordance with the relevant legal framework”. The NTA further held that the second alternative mentioned in the High Court’s judgment, namely that the transfer could also be authorised abroad, could not be implemented, in so far as the appropriate authorisation for a transfer abroad was not an ordinary authorisation for transfer, but “an authorisation for export”, which was never requested as such by the applicant; moreover, authorisation for export had a very particular character, and in its absence the export of human tissues and cells was prohibited. 32. Subsequently, the applicant unsuccessfully attempted to transfer her embryos to the B. clinic (a private clinic in Bucharest). In their response to the Government on why the transfer was not possible, on 6 October 2011 the B. Clinic informed that they could not proceed with the transfer without relevant medical information concerning the embryos and their medical history, including data on how they had been preserved from the very beginning. Consequently and having regard to the fact that the clinic did not have the special quarantine conditions needed for deposit of the embryos, the transfer could not be carried out in compliance with the applicable legal provisions. 33. On 12 October 2011, a DIICOT prosecutor issued a decision, in which it was held that having regard to the High Court’s ruling and to the fact that the only State medical institutions accredited to function as “human cells and/or tissue banks” were respectively the Prof. Dr. Panait Sârbu Obstetrics and Gynaecology Hospital in Bucharest and the Emergency County Hospital in Cluj, for reasons of efficiency the first institution was to become the new custodian of the applicant’s embryos. The embryo transfer was to be carried out by a specialist transport company, the costs being borne by the DIICOT. All documents regarding the maintenance of the embryos were to be transferred to the new custodian. The prosecutor’s decision was not contested by the applicant. 34. In accordance with this decision, on 19 October 2011 the embryo transfer was carried out and the embryos placed in the Assisted Reproduction Laboratory within the Prof. Dr. Panait Sârbu Hospital, the newly appointed custodian. According to a letter sent by the Ministry of Health to the Government on 15 December 2011, the new custodian was accredited as a genetic bank and human cell and tissue bank, and was also authorised to assist the applicant with any procedure related to artificial insemination. 35. In a letter of 11 November 2011, the applicant submitted that the transfer of the embryos had once more been carried out without her consent and even without her being consulted or informed in advance. She further stated that in the Prof. Dr. Panait Sârbu Hospital she had had bad experiences, in so far as in 2007 she underwent two unsuccessful IVF procedures there and therefore she could no longer trust the professional capacity of those doctors. She considered that she was entitled to be assisted for future IVF by doctors of her choice, in whom she trusted; therefore the transfer of her embryos into the above-mentioned clinic had denied her that right. The applicant requested the opportunity to transfer her embryos to a clinic of her choice, at the expense of the Romanian authorities, who were responsible for the situation created and also for the well-being of her embryos. 36. By a letter of 23 December 2011, the Prof. Dr. Panait Sârbu Hospital informed the applicant’s representative that from 16 January 2012 they could be contacted to set a date on which the applicant, in the presence of an embryologist, could come to take possession of her genetic material in order to transfer it elsewhere, in accordance with the applicable rules and regulations set by the NTA. By a letter sent to the Court on 3 March 2012, the applicant stated that she had found a clinic outside Bucharest “willing to help” her and that a date of transfer was “hopefully” imminent. In the meantime, she had also tried to set up a new procedure in the hope of a new pregnancy. She further stressed the trauma she had gone through on account of the State’s successive interferences with her right to have another child by IVF. 37. On 14 May 2012, the applicant alleged that she had contacted many clinics in Romania regarding the transfer of her embryos, but in spite of the fact that they were open to the idea at the beginning, “after further evaluation, the risk for them seemed to high” and no transfer was agreed. 38. The Government replied that on one hand, the applicant’s assertions were too vague and unsubstantiated, and on the other hand, that she had not acted with specific diligence to transfer her embryos from Prof. Dr. Panait Sârbu clinic, either to start an IVF procedure or at least to get more information about how her embryos were being taken care of in that clinic. On 19 June 2012, the Government sent a document issued by the Prof. Dr. Panait Sârbu clinic in which it was confirmed that the applicant could initiate an IVF procedure in that clinic, with the assistance of a doctor and an embryologist of her choice, whether from Romania or from abroad, in so far as these two had a license to practice in Romania. Furthermore, a letter from the private clinic M.N.L. in Bucharest was appended, stating that the clinic was willing to take the applicant’s embryos while its doctors would monitor both the patient and the embryo-transfer. On 22 June 2012, the applicant met the manager of the M.N.L. clinic; following their discussion, she wrote a letter to the clinic in which she asked for more information concerning the concrete stages envisaged for the embryo transfer, as well as a precise date on which such a transfer could be accomplished. | In July 2009 frozen embryos that the applicant had deposited with a private clinic were seized by the authorities due to concerns about the clinic’s credentials. The applicant subsequently experienced considerable difficulties in securing a transfer by the State of the embryos to a specialised clinic so that she might use them to become a parent by means of an IVF procedure. Before the Court, the applicant complained that this resulted in a breach of her right to a private and family life. |
484 | Reasoning in support of a judgment based on difference of sex | I. THE CIRCUMSTANCES OF THE CASE 7. Mrs Margrit Schuler-Zgraggen, a Swiss national born in 1948, was married in 1972. She lives at Schattdorf in the Canton of Uri. A. Granting of an invalidity pension 8. In 1973 she began to work for the industrial firm of D. at Altdorf (Canton of Uri). Her employer regularly deducted contributions to the federal invalidity-insurance scheme from her wages (see paragraph 33 below). 9. In the spring of 1975 she contracted open pulmonary tuberculosis. On 29 April 1976 she applied for a pension on the grounds of incapacity for work due to her illness. The Compensation Office ( Ausgleichskasse ) of the Swiss Machine and Metal Industry ( Schweizerische Maschinen - und Metallindustrie ) decided on 24 September 1976 to grant her half an invalidity pension for the period from 1 April to 31 October 1976. 10. On 28 September 1978 the D. company dismissed the applicant with effect from 1 January 1979 on account of her illness. 11. After Mrs Schuler-Zgraggen had made a further application for a pension, the Compensation Office determined on 25 March 1980 that she was physically and mentally unfit for work and decided to pay her a full pension with effect from 1 May 1978. In 1981 and 1982 the invalidity-insurance authorities reviewed her case and confirmed the award of a pension. 12. On 4 May 1984 the applicant gave birth to a son. B. The proceedings before the Invalidity Insurance Board of the Canton of Uri 1. The medical examinations 13. In 1985 the Invalidity Insurance Board (IV- Kommission ) of the Canton of Uri asked Mrs Schuler-Zgraggen to undergo an examination at the invalidity-insurance authorities ’ medical centre ( Medizinische Abklärungsstelle der Invalidenversicherung ) in Lucerne. 14. The medical centre asked Drs F. and B. for two reports ( Konsilien ) on the applicant ’ s health - one on the state of her lungs and the other a psychiatric report - and these were sent in on 10 and 24 December 1985 respectively. The centre prepared a summary on 14 January 1986, to which it attached Dr B. ’ s report; it concluded that the applicant was wholly unfit for clerical work and assessed her fitness for household work at 60-70%. 2. The decision of 21 March 1986 15. On 21 March 1986 the Invalidity Insurance Board cancelled, with effect from 1 May 1986, Mrs Schuler- Zgraggen ’ s pension, then amounting to 2,016 Swiss francs (CHF) a month, as her family circumstances had radically changed with the birth of her child, her health had improved, and she was 60-70% able to look after her home and her child. C. The proceedings before the Canton of Uri Appeals Board for Old Age, Survivors ’ and Invalidity Insurance 1. The appeal and the applications for access to and handing over of documents 16. On 21 April 1986 Mrs Schuler-Zgraggen lodged an appeal ( Beschwerde ) with the Canton of Uri Appeals Board for Old Age, Survivors ’ and Invalidity Insurance ( Rekurskommission für die Alters-, Hinterlassenen - und Invalidenversicherung - "the Appeals Board"). She claimed a full invalidity pension or, failing that, a half-pension, arguing, in particular, that the Federal Invalidity Insurance Act conferred on her the right to a pension so long as she was at least 66.66% incapacitated. So as to continue receiving her pension, she also asked the Board to order that her appeal should have suspensive effect. 17. The Board dismissed the latter application on 7 May. 18. On 22 May Mrs Schuler-Zgraggen dispensed with the services of her counsel. 19. On 26 May she went to the Invalidity Insurance Board ’ s headquarters to inspect her medical file, which had been sent there by the Appeals Board, but she was not allowed to see it. On the same day she wrote to the Invalidity Insurance Board to complain about this and to demand to be able to see the file or at least a photocopy of certain important documents. In a letter of 28 July 1986 to the same board she again sought permission to inspect the file, in particular "all the medical reports, records of examinations and results of laboratory tests from 1975 to 1986", and the handing over of vital documents. 2. The decision of 8 May 1987 20. The Appeals Board dismissed the appeal on 8 May 1987. In the first place, the right to inspect the file did not imply a right to take documents away or to have photocopies made of them. It sufficed that the appellant had had an opportunity to study her file at the Appeals Board registry; she had not availed herself of that opportunity, despite numerous invitations to do so. In the second place, it could not be discounted that even if the appellant had been fit, she would have been content with looking after her home once her child had been born. At all events, having regard in particular to the examinations carried out by the medical centre, the invalidity in question was not enough, in the case of a mother and housewife, to make her eligible for a pension. Mrs Schuler-Zgraggen was in a position to be more active if she really wished to work despite her new family circumstances. The refusal to pay a pension could help her recover from her neurotic obsession with being unable to work. 3. The subsequent proceedings 21. On 11 August 1987 Mrs Schuler-Zgraggen wrote to the Appeals Board. She said she needed all the documents and expert reports in order to assess the prospects of succeeding in her legal action. She referred to a perfusion scintigram, a lung-function test, blood-gas analyses and a plethysmogram. 22. In a letter of 13 August the Appeals Board replied as follows: "... [T] hese documents provided the basis for the various medical reports. They are in our file only because of the right of inspection granted to you. We are therefore unable to make further documents available to you." D. The proceedings in the Federal Insurance Court 1. The administrative-law appeal 23. On 20 August 1987 Mrs Schuler-Zgraggen lodged an administrative-law appeal with the Federal Insurance Court against the decision of the Appeals Board. She applied for a full pension or, in the alternative, an order remitting the case to the authority of first instance. She also sought leave to inspect the whole of her file ( vollumfängliches Akteneinsichtsrecht ). 24. The Federal Insurance Court received observations from the Compensation Office ’ s invalidity-insurance department on 20 October 1987 and from the Federal Social Insurance Office on 9 November. The Compensation Office submitted that the invalidity pension should cease; the Federal Social Insurance Office argued that the appeal should be dismissed, relying on a report by its own medical service, which referred in particular to the examination carried out by the medical centre. 25. In a letter of 23 November 1987 the Federal Court informed the applicant that her complete file had been sent to the Appeals Board, which "within the next fourteen days [would] make all the documents available [to her] for inspection". She would then have a further ten days in which to supplement her administrative-law appeal submissions. 26. On 30 November 1987 Mrs Schuler-Zgraggen inspected her file and photocopied a number of documents. On 1 December the file was returned to the Federal Insurance Court. 27. Mr Schleifer, a lawyer, wrote to the Federal Court on 7 December to inform it that he would henceforth be representing the applicant and to ask for the case file to be forwarded to him; this was done on 11 December. 28. On 11 January 1988 Mrs Schuler-Zgraggen filed supplementary pleadings in support of her appeal. They included a complaint that the medical centre took it for granted in its expert opinion that her lungs functioned normally, relying on the report of Dr F., which was not in the file however. She also criticised the arbitrariness of the Appeals Board ’ s opinion that even if she had been fit, she would have devoted herself to household tasks because of the birth of her child. 2. The judgment of 21 June 1988 29. The Federal Insurance Court gave judgment on 21 June 1988, holding that since 1 May Mrs Schuler-Zgraggen had been 33.33% incapacitated and was therefore eligible for a half-pension if she was in financial difficulties, and that as there was no evidence before it on this point, the case should be remitted to the Compensation Office. In such a case the court ’ s function was not limited to reviewing compliance with federal law and ascertaining that judicial discretion had not been exceeded or misused; it could also review the appropriateness of the impugned decision, and was bound neither by the facts found by the court below nor by the parties ’ claims. The applicant had succeeded in her complaint that the Appeals Board had failed to produce all the documents for inspection; she had been able to argue her case in the Federal Court, whose file she had had an opportunity to examine and which had considered the facts and the law with complete freedom. As to the pension claim, the court said: "Regard must ... be had to the fact that many married women go out to work until their first child is born, but give up their jobs for as long as the children need full-time care and upbringing. This assumption based on experience of everyday life - experience which must be duly taken into account in determining the method to be applied for assessing incapacity ... - must be the starting-point in the present case. At the time the contested decision was taken, on 21 March 1986 ..., the child, who was born on 4 May 1984, was just under two years old, and accordingly, on the balance of probabilities ( nach dem Beweisgrad der überwiegenden Wahrscheinlichkeit )..., it must be assumed that the applicant, even if her health had not been impaired, would have been occupied only as a housewife and mother." In the court ’ s view, this made it unnecessary to examine whether Mrs Schuler-Zgraggen was fit to work in her previous employment; the question was rather one of determining to what extent, if at all, she had been restricted in her activities as a mother and housewife. Here it was sufficient to rely on the expert opinion produced by the medical centre. The fact that the lung specialist ’ s report was missing from the file was a defect ( ein gewisser Mangel ), but the examination carried out by the specialist in internal medicine made it possible to answer the question whether after 1980 there had been any change in the state of the applicant ’ s lungs. After that date the applicant had no longer been treated for tuberculosis and in that respect was perfectly fit to work. As to her neurosis, it had much diminished in the meantime; and a handicap resulting from her back problems could in theory be assessed at 25% at most. 30. On 17 July 1989 the Compensation Office decided that Mrs Schuler-Zgraggen could not claim a half-pension since her income in 1986, 1987 and 1988 had greatly exceeded the maxima applicable in those years to "cases of hardship" (see paragraph 35 below). The applicant did not appeal. | The applicant, who had applied for an invalidity pension, submitted in particular that the Federal Insurance Court had based its judgment in her case on an “assumption based on experience of everyday life” namely that many married women give up their jobs when their first child is born and resume it only later. It inferred from this that the applicant would have given up work even if she had not had health problems. The applicant claimed that such assumption amounted to discrimination on the ground of sex. |
1,043 | Military presence and political support | I. THE CIRCUMSTANCES OF THE CASE A. Background 12. At the time of the demise of the Union of Soviet Socialist Republics ( USSR ), the Nagorno-Karabakh Autonomous Oblast (NKAO) was an autonomous region ( oblast ) of the Azerbaijan Soviet Socialist Republic (“the Azerbaijan SSR”). Situated within the territory of the Azerbaijan SSR, it covered 4,388 sq. km. There was at the time no common border between Nagorno-Karabakh (known as Artsakh by its Armenian name) and the Armenian Soviet Socialist Republic (“the Armenian SSR”), which were separated by Azerbaijani territory, the district of Lachin being the shortest distance between them, including a strip of land often referred to as the “Lachin corridor”, less than 10 km wide. 13. According to the USSR census of 1989, the NKAO had a population of 189,000, consisting of 77% ethnic Armenians and 22% ethnic Azeris, with Russian and Kurdish minorities. The district of Lachin had a different demographic, the vast majority of its population of some 60,000 being Kurds and Azeris. Only 5-6% were Armenians. 14. In early 1988 demonstrations were held in Stepanakert, the regional capital of the NKAO, as well as in the Armenian capital, Yerevan, to demand the incorporation of Nagorno-Karabakh into Armenia. On 20 February the Soviet of the NKAO made a request to the Supreme Soviets of the Armenian SSR, the Azerbaijan SSR and the USSR that the NKAO be allowed to secede from Azerbaijan and join Armenia. The request was rejected by the Supreme Soviet of the USSR on 23 March. In June it was also rejected by the Supreme Soviet of Azerbaijan, whereas its counterpart in Armenia voted in favour of unification. 15. Throughout 1988 the demonstrations calling for unification continued. The district of Lachin was subjected to roadblocks and attacks. The clashes led to many casualties, and refugees, numbering in the hundreds of thousands on both sides, flowed between Armenia and Azerbaijan. As a consequence, on 12 January 1989 the USSR government placed the NKAO under Moscow ’ s direct rule. However, on 28 November, control of the region was returned to Azerbaijan. A few days later, on 1 December, the Supreme Soviet of the Armenian SSR and the Nagorno ‑ Karabakh Regional Council adopted a Joint Resolution on the reunification of Nagorno-Karabakh with Armenia. As a result of this Resolution, a joint budget for the two entities was established in January 1990 and a decision was taken to include Nagorno-Karabakh in the Armenian elections, which were to take place in the spring of that year. 16. In early 1990, following an escalation of the conflict, Soviet troops arrived in Baku and Nagorno-Karabakh and the latter was placed under a state of emergency. Violent clashes between Armenians and Azeris continued, however, with the occasional intervention by Soviet forces. 17. On 30 August 1991 Azerbaijan declared independence from the Soviet Union. This was subsequently formalised by the adoption of the Constitutional Act on the State Independence of the Republic of Azerbaijan of 18 October. On 2 September the Soviet of the NKAO announced the establishment of the “ Republic of Nagorno-Karabakh ” (the “NKR”), consisting of the territory of the NKAO and the Shahumyan district of Azerbaijan, and declared that it was no longer under Azerbaijani jurisdiction. On 26 November the Azerbaijani Parliament abolished the autonomy previously enjoyed by Nagorno-Karabakh. In a referendum organised in Nagorno-Karabakh on 10 December, 99.9% of those participating voted in favour of secession. However, the Azeri population boycotted the referendum. In the same month, the Soviet Union was dissolved and Soviet troops began to withdraw from the region. Military control of Nagorno ‑ Karabakh was rapidly being handed over to the Karabakh Armenians. On 6 January 1992 the “NKR”, having regard to the results of the referendum, reaffirmed its independence from Azerbaijan. 18. In early 1992 the conflict gradually escalated into a full-scale war. The ethnic Armenians conquered several Azeri villages, resulting in at least several hundred deaths and the departure of the population. 19. The district of Lachin, in particular the town of Lachin, was attacked many times. The applicants claimed that the attacks were made by troops of both Nagorno-Karabakh and Armenia. The Government maintained, however, that Armenia did not participate in the events, but that military action was carried out by the defence forces of Nagorno-Karabakh and volunteer groups. For almost eight months in 1991, the roads to Lachin were under the control of forces of Armenian ethnicity who manned and controlled checkpoints. The town of Lachin became completely isolated. In mid-May 1992 Lachin was subjected to aerial bombardment, during which many houses were destroyed. 20. On 17 May 1992 realising that troops were advancing rapidly towards Lachin, villagers fled. The following day the town of Lachin was captured by forces of Armenian ethnicity. It appears that the town was looted and burnt in the days following the takeover. According to information obtained by the Government from the authorities of the “NKR”, the city of Lachin and the surrounding villages of Aghbulag, Chirag and Chiragli were completely destroyed during the military conflict. 21. In July 1992 the Armenian Parliament decreed that it would not sign any international agreement stipulating that Nagorno-Karabakh remain a part of Azerbaijan. 22. According to a Human Rights Watch (HRW) report (“ Azerbaijan: Seven Years of Conflict in Nagorno-Karabakh”, December 1994), the capture of the district of Lachin resulted in approximately 30,000 Azeri displaced persons, many of them of Kurdish descent. 23. Following the capture of Lachin, ethnic Armenian forces continued to conquer four more Azerbaijani districts surrounding Nagorno-Karabakh (Kelbajar, Jebrayil, Gubadly and Zangilan) and substantial parts of two others (Agdam and Fizuli). 24. On 5 May 1994 a ceasefire agreement, known as the Bishkek Protocol (“the Ceasefire Agreement”), was signed by Armenia, Azerbaijan and the “NKR” following Russian mediation. It came into force on 12 May. 25. According to the above-mentioned HRW report, between 1988 and 1994 an estimated 750,000 to 800,000 Azeris were forced out of Nagorno ‑ Karabakh, Armenia and the seven Azerbaijani districts surrounding Nagorno-Karabakh. According to information from the Armenian authorities, 335,000 Armenian refugees from Azerbaijan and 78,000 internally displaced persons (from regions in Armenia bordering Azerbaijan) have been registered. B. Current situation 26. According to the Government, the “NKR” controls 4,061 sq. km of the former NKAO. While it is debated how much of the two partly conquered districts is occupied by the “NKR”, it appears that the occupied territory of the seven surrounding districts in total amounts to some 7,500 sq. km. 27. Estimates of today ’ s population of Nagorno-Karabakh vary between 120,000 and 145,000 people, 95% of whom are of Armenian ethnicity. Virtually no Azerbaijanis remain. The district of Lachin has a population of between 5,000 and 10,000 Armenians. 28. No political settlement of the conflict has so far been reached. The self-proclaimed independence of the “NKR” has not been recognised by any State or international organisation. Recurring breaches of the Ceasefire Agreement along the borders have led to the loss of many lives and the rhetoric of officials remains hostile. Moreover, according to international reports, tension has heightened in recent years and military expenditure in Armenia and Azerbaijan has increased significantly. 29. Several proposals for a peaceful solution of the conflict have failed. Negotiations have been carried out under the auspices of the Organization for Security and Co-operation in Europe ( OSCE ) and its so-called Minsk Group. In Madrid in November 2007, the Group ’ s three Co-Chairs – France, Russia and the United States of America – presented to Armenia and Azerbaijan a set of Basic Principles for a settlement. The Basic Principles, which have since been updated, call, inter alia, for the return of the territories surrounding Nagorno-Karabakh to Azerbaijani control; an interim status for Nagorno-Karabakh providing guarantees for security and self-governance; a corridor linking Armenia to Nagorno-Karabakh; a future determination of the final legal status of Nagorno-Karabakh through a legally binding referendum; the right of all internally displaced persons and refugees to return to their former places of residence; and international security guarantees that would include a peacekeeping operation. The idea is that the endorsement of these principles by Armenia and Azerbaijan would enable the drafting of a comprehensive and detailed settlement. Following intensive shuttle diplomacy by Minsk Group diplomats and a number of meetings between the Presidents of the two countries in 2009, the process lost momentum in 2010. So far the parties to the conflict have not signed a formal agreement on the Basic Principles. 30. On 24 March 2011 the Minsk Group presented a “Report of the OSCE Minsk Group Co-Chairs ’ Field Assessment Mission to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh”, the Executive Summary of which reads as follows. “The OSCE Minsk Group Co-Chairs conducted a Field Assessment Mission to the seven occupied territories of Azerbaijan surrounding Nagorno-Karabakh (NK) from October 7-12, 2010, to assess the overall situation there, including humanitarian and other aspects. The Co-Chairs were joined by the Personal Representative of the OSCE Chairman-in-Office and his team, which provided logistical support, and by two experts from the UNHCR and one member of the 2005 OSCE Fact-Finding Mission. This was the first mission by the international community to the territories since 2005, and the first visit by UN personnel in 18 years. In travelling more than 1,000 kilometers throughout the territories, the Co-Chairs saw stark evidence of the disastrous consequences of the Nagorno-Karabakh conflict and the failure to reach a peaceful settlement. Towns and villages that existed before the conflict are abandoned and almost entirely in ruins. While no reliable figures exist, the overall population is roughly estimated as 14,000 persons, living in small settlements and in the towns of Lachin and Kelbajar. The Co-Chairs assess that there has been no significant growth in the population since 2005. The settlers, for the most part ethnic Armenians who were relocated to the territories from elsewhere in Azerbaijan, live in precarious conditions, with poor infrastructure, little economic activity, and limited access to public services. Many lack identity documents. For administrative purposes, the seven territories, the former NK Oblast, and other areas have been incorporated into eight new districts. The harsh reality of the situation in the territories has reinforced the view of the Co ‑ Chairs that the status quo is unacceptable, and that only a peaceful, negotiated settlement can bring the prospect of a better, more certain future to the people who used to live in the territories and those who live there now. The Co-Chairs urge the leaders of all the parties to avoid any activities in the territories and other disputed areas that would prejudice a final settlement or change the character of these areas. They also recommend that measures be taken to preserve cemeteries and places of worship in the territories and to clarify the status of settlers who lack identity documents. The Co-Chairs intend to undertake further missions to other areas affected by the NK conflict, and to include in such missions experts from relevant international agencies that would be involved in implementing a peace settlement.” 31. On 18 June 2013 the Presidents of the Co-Chair countries of the Minsk Group issued a Joint Statement on the Nagorno-Karabakh Conflict. “We, the Presidents of the OSCE Minsk Group Co-Chair countries – France, the Russian Federation, and the United States of America – remain committed to helping the parties to the Nagorno-Karabakh conflict reach a lasting and peaceful settlement. We express our deep regret that, rather than trying to find a solution based upon mutual interests, the parties have continued to seek one-sided advantage in the negotiation process. We continue to firmly believe that the elements outlined in the statements of our countries over the last four years must be the foundation of any fair and lasting settlement to the Nagorno-Karabakh conflict. These elements should be seen as an integrated whole, as any attempt to select some elements over others would make it impossible to achieve a balanced solution. We reiterate that only a negotiated settlement can lead to peace, stability, and reconciliation, opening opportunities for regional development and cooperation. The use of military force that has already created the current situation of confrontation and instability will not resolve the conflict. A renewal of hostilities would be disastrous for the population of the region, resulting in loss of life, more destruction, additional refugees, and enormous financial costs. We strongly urge the leaders of all the sides to recommit to the Helsinki principles, particularly those relating to the non-use of force or the threat of force, territorial integrity, and equal rights and self-determination of peoples. We also appeal to them to refrain from any actions or rhetoric that could raise tension in the region and lead to escalation of the conflict. The leaders should prepare their people for peace, not war. Our countries stand ready to assist the sides, but the responsibility for putting an end to the Nagorno-Karabakh conflict remains with them. We strongly believe that further delay in reaching a balanced agreement on the framework for a comprehensive peace is unacceptable, and urge the leaders of Azerbaijan and Armenia to focus with renewed energy on the issues that remain unresolved.” C. The applicants and the property allegedly owned by them in the district of Lachin 32. The applicants have stated that they are Azerbaijani Kurds who lived in the district of Lachin, where their ancestors had lived for hundreds of years. On 17 May 1992 they were forced to flee from the district to Baku. They have since been unable to return to their homes and properties because of Armenian occupation. 1. Mr Elkhan Chiragov 33. Mr Elkhan Chiragov was born in 1950. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government ’ s observations it was stated that his correct home village was Chiragli, where he worked as a teacher for fifteen years. He claimed that his possessions included a large furnished house of 250 sq. m, 55 beehives, 80 head of small livestock and nine head of big livestock, and five handmade carpets. 34. On 27 February 2007, together with the applicants ’ reply to the Government ’ s observations, he submitted an official certificate (“technical passport”) dated 19 July 1985, according to which a two-storey, twelve -bedroom dwelling house with a total area of 408 sq. m (living area of 300 sq. m and subsidiary area of 108 sq. m) and a storehouse of 60 sq. m, situated on a plot of land of 1, 200 sq. m, had been registered in his name. 35. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, sixteen -room dwelling house of 260 sq. m and a car, as well as a statement by A. Jafarov and A. Halilov, representatives of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Elkhan Chiragov used to live in Chiragli. 36. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1978, birth certificates for his son and daughter, both born in Chiragli in 1979 and 1990 respectively, as well as a letter dating from 1979 and a 1992 employment book issued by the Lachin District Educational Department, showing that he had worked as a teacher in Chiragli. 2. Mr Adishirin Chiragov 37. Mr Adishirin Chiragov was born in 1947. He lived in the district of Lachin. In the original application, it was mentioned that he lived in the village of Chirag, but in the reply to the Government ’ s observations it was stated that his correct home village was Chiragli, where he had worked as a teacher for twenty years. He claimed that his possessions included a large furnished house of 145 sq. m, a new “Niva” car, 65 head of small livestock and 11 head of big livestock, and six handmade carpets. 38. On 27 February 2007 he submitted a technical passport dated 22 April 1986, according to which a two-storey, eight-bedroom dwelling house with a total area of 230.4 sq. m (living area of 193. 2 sq. m and subsidiary area of 37.2 sq. m) and a storehouse of 90 sq. m, situated on a plot of land of 1, 200 sq. m, had been registered in his name. 39. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey dwelling house with eight rooms, as well as a statement by A. Jafarov and A. Halilov, representatives of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Adishirin Chiragov used to live in Chiragli. 40. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Chiragli and married there in 1975, birth certificates for his son and two daughters, all born in Chiragli in 1977, 1975 and 1982 respectively, as well as a USSR passport issued in 1981, indicating Chiragli as his place of birth and containing a 1992 registration stamp designating Chiragli as his place of residence. 3. Mr Ramiz Gebrayilov 41. Mr Ramiz Gebrayilov was born in Chiragli in 1960. In 1988 he graduated with a degree in engineering from the Baku Polytechnical Institute. In 1983, while still studying in Baku, he visited the town of Lachin and was given a 5,000 sq. m plot of land by the State. He claimed that he had built a six-bedroom house with a garage on it and lived there with his wife and children until he was forced to leave in 1992. There were also some cattle sheds. He also owned a car repair business called “Auto Service”, a shop and a café, which were situated on a further 5,000 sq. m of land that he owned. In addition, he had 12 cows, 70 lambs and 150 sheep. 42. Mr Gebrayilov had been unable to return to Lachin since his departure in 1992. In 2001 Armenian friends of his went to Lachin and videotaped the condition of the houses in the town. According to the applicant, he could see from the video that his house had been burnt down. He had also been informed by people who left Lachin after him that his house had been burnt down by Armenian forces a few days after he had left Lachin. 43. On 27 February 2007 Mr Gebrayilov submitted a technical passport dated 15 August 1986, according to which a two-storey, eight-bedroom dwelling house with a total area of 203.2 sq. m (living area of 171.2 sq. m and subsidiary of area 32 sq. m), situated on a plot of land of 480 sq. m, had been registered in his name. 44. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey house with eight rooms, as well as a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Gebrayilov used to live in his personal house in Lachin. 45. Before the Grand Chamber, the applicant submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1982, birth certificates for his daughter and two sons, all born in Lachin in 1982, 1986 and 1988 respectively, as well as an army book issued in 1979. 4. Mr Akif Hasanof 46. Mr Akif Hasanof was born in 1959 in the village of Aghbulag in the district of Lachin. He worked there as a teacher for twenty years. He claimed that his possessions included a large furnished house of 165 sq. m, a new “Niva” car, 100 head of small livestock and 16 head of big livestock, and 20 handmade carpets. 47. On 27 February 2007 he submitted a technical passport dated 13 September 1985, according to which a two-storey, nine-bedroom dwelling house with a total area of 448.4 sq. m (living area of 223.2 sq. m and subsidiary area of 225.2 sq. m) and a storehouse of 75 sq. m, situated on a plot of land of 1, 600 sq. m, had been registered in his name. 48. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, nine-room dwelling house as well as a stall for livestock and subsidiary buildings, as well as a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Hasanof used to live in his personal house in Aghbulag. 49. Before the Grand Chamber, the applicant submitted a birth certificate, a USSR passport issued in 1976 and an employment book issued by the Lachin District Educational Department, indicating that he was born in Aghbulag and had worked as a teacher and school director in that village between 1981 and 1988. 5. Mr Fekhreddin Pashayev 50. Mr Fekhreddin Pashayev was born in 1956 in the village of Kamalli in the district of Lachin. After graduating with a degree in engineering from the Baku Polytechnical Institute in 1984, he returned to the town of Lachin where he was employed as an engineer and, from 1986, as chief engineer at the Ministry of Transport. He claimed that he owned and lived in a two ‑ storey, three-bedroom house in Lachin which he had built himself. The house was situated at no. 50, 28 Aprel Kucesi, Lachin Seheri, Lachin Rayonu. Mr Pashayev submitted that the current market value of the house would be 50,000 United States dollars (USD). He also owned the land around his house and had a share (about 10 ha ) in a collective farm in Kamalli. Furthermore, he owned some land through “collective ownership”. 51. On 27 February 2007 he submitted a technical passport dated August 1990, according to which a two-storey dwelling house with a total area of 133.2 sq. m (living area of 51.6 sq. m and subsidiary area of 81.6 sq. m), situated on a plot of land of 469.3 sq. m, had been registered in his name. 52. He also presented a statement by three former neighbours, who affirmed that he owned a two-storey, four-room dwelling house, as well as a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Pashayev used to live in his own house at 28 Aprel Kucesi, Lachin. 53. Before the Grand Chamber, the applicant submitted, inter alia, a marriage certificate according to which he was born in Kamalli and married there in 1985, birth certificates for his two daughters, born in Kamalli in 1987 and in Lachin in 1991 respectively, a birth certificate for his son, registered as having been born in Kamalli in 1993, as well as an army book issued in 1978 and an employment book dating from 2000. He explained that, while his son had in fact been born in Baku, it was normal under the USSR propiska system to record a child as having been born at the parents ’ registered place of residence. 6. Mr Qaraca Gabrayilov 54. Mr Qaraca Gabrayilov was born in the town of Lachin in 1940 and died on 19 June 2005. On 6 April 2005, at the time of submitting the present application, he stated that, when he was forced to leave on 17 May 1992, he had been living at holding no. 580, N. Narimanov Street, flat 128a in the town of Lachin, a property he owned and which included a two-storey residential family house built in 1976 with a surface of 187.1 sq. m and a yard area of 453.6 sq. m. He also claimed that he owned a further site of 300 sq. m on that street. Annexed to the application was a technical passport dated August 1985, according to which a two-storey house with a yard, of the mentioned sizes, had been registered in his name. 55. On 27 February 2007, however, the applicant ’ s representatives submitted that he had been living at 41 H. Abdullayev Street in Lachin. Nevertheless, he owned the two properties on N. Narimanov Street. Attached to these submissions were a statement by three former neighbours and a statement by V. Maharramov, representative of the Lachin City Executive Power of the Republic of Azerbaijan, who stated that Mr Gabrayilov used to live in his own house at H. Abdullayev Street, Lachin. Attached were also a decision of 29 January 1974 by the Lachin District Soviet of People ’ s Deputies to allocate the above-mentioned plot of 300 sq. m to the applicant, and several invoices for animal feed, building materials and building subsidies allegedly used during the construction of his properties. 56. On 21 November 2007 Mr Sagatel Gabrayilov, the son of the applicant, stated that the family did used to live at N. Narimanov Street but that, on an unspecified date, the name and numbering of the street had been changed, their address thereafter being H. Abdullayev Street. Thus, the two addresses mentioned above referred to the same property. 57. Before the Grand Chamber, the applicant ’ s representatives submitted, inter alia, a birth certificate and a marriage certificate according to which he was born in Chiragli and married there in 1965, a birth certificate for his son, born in Alkhasli village in the district of Lachin in 1970, as well as an army book issued in 1963. D. Relations between the Republic of Armenia and the “Republic of Nagorno-Karabakh” 58. The applicants and the Government as well as the third-party intervener, the Azerbaijani Government, submitted extensive documentation and statements on the issue of whether Armenia exercises authority in or control over the “NKR” and the surrounding territories. The information thus received is summarised below, in so far as considered relevant by the Court. 1. Military aspects 59. In 1993 the United Nations Security Council adopted the following four Resolutions relating to the Nagorno-Karabakh conflict. Resolution 822 (1993), 30 April 1993, S/RES/822 (1993) “ The Security Council, ... Noting with alarm the escalation in armed hostilities and, in particular, the latest invasion of the Kelbadjar district of the Republic of Azerbaijan by local Armenian forces, ... 1. Demands the immediate cessation of all hostilities and hostile acts with a view to establishing a durable cease-fire, as well as immediate withdrawal of all occupying forces from the Kelbadjar district and other recently occupied areas of Azerbaijan, ...” Resolution 853 (1993), 29 July 1993, S/RES/853 (1993) “ The Security Council, ... Expressing its serious concern at the deterioration of relations between the Republic of Armenia and the Azerbaijani Republic and at the tensions between them, ... Noting with alarm the escalation in armed hostilities and, in particular, the seizure of the district of Agdam in the Azerbaijani Republic, ... 3. Demands the immediate cessation of all hostilities and the immediate, complete and unconditional withdrawal of the occupying forces involved from the district of Agdam and other recently occupied districts of the Azerbaijani Republic; ... 9. Urges the Government of the Republic of Armenia to continue to exert its influence to achieve compliance by the Armenians of the Nagorny-Karabakh region of the Azerbaijani Republic with its resolution 822 (1993) and the present resolution, and the acceptance by this party of the proposals of the Minsk Group of the [OSCE]; ...” Resolution 874 (1993), 14 October 1993, S/RES/874 (1993) “ The Security Council, ... Expressing its serious concern that a continuation of the conflict in and around the Nagorny Karabakh region of the Azerbaijani Republic, and of the tensions between the Republic of Armenia and the Azerbaijani Republic, would endanger peace and security in the region, ... 5. Calls for the immediate implementation of the reciprocal and urgent steps provided for in the [OSCE] Minsk Group ’ s ‘ Adjusted timetable ’, including the withdrawal of forces from recently occupied territories and the removal of all obstacles to communication and transportation; ...” Resolution 884 (1993), 12 November 1993, S/RES/884 (1993) “ The Security Council, ... Noting with alarm the escalation in armed hostilities as [a] consequence of the violations of the cease-fire and excesses in the use of force in response to those violations, in particular the occupation of the Zangelan district and the city of Goradiz in the Azerbaijani Republic, ... 2. Calls upon the Government of Armenia to use its influence to achieve compliance by the Armenians of the Nagorny Karabakh region of the Azerbaijani Republic with resolutions 822 (1993), 853 (1993) and 874 (1993), and to ensure that the forces involved are not provided with the means to extend their military campaign further; ... 4. Demands from the parties concerned the immediate cessation of armed hostilities and hostile acts, the unilateral withdrawal of occupying forces from the Zangelan district and the city of Goradiz, and the withdrawal of occupying forces from the other recently occupied areas of the Azerbaijani Republic in accordance with the ‘ Adjusted timetable of urgent steps to implement Security Council resolutions 822 (1993) and 853 (1993) ’ ... as amended by the [OSCE] Minsk Group meeting in Vienna of 2 to 8 November 1993; ...” 60. The above-mentioned HRW report of December 1994 (see paragraph 22) contains accounts of the Nagorno-Karabakh conflict. While stating that “[a] Karabakh Armenian military offensive in May/June 1992 captured a large part of Lachin province”, it goes on to summarise the events in 1993 and 1994 as follows: “... Karabakh Armenian troops – often with the support of forces from the Republic of Armenia – captured the remaining Azerbaijani provinces surrounding [ Nagorno- ] Karabakh and forced out the Azeri civilian population: the rest of Lachin province, and Kelbajar, Agdam, Fizuli, Jebrayil, Qubatli, and Zangelan provinces.” The HRW report presents several pieces of information which point to an involvement of the Armenian army in Nagorno-Karabakh and the surrounding territories ( see Chapter VII. The Republic of Armenia as a Party to the Conflict ). Allegedly, Armenia had even sent members of its police force to perform police duties in the occupied territories. HRW spent two days in April 1994 interviewing Armenian uniformed soldiers on the streets of Yerevan. 30% of them were draftees in the Armenian army who had either fought in Karabakh, had orders to go to Karabakh or had ostensibly volunteered for service there. Moreover, on a single day in April 1994 HRW researchers had counted five buses holding an estimated 300 soldiers of the Armenian army entering Nagorno-Karabakh from Armenia. Other western journalists had reported to HRW researchers that they had seen eight more buses full of Armenian army soldiers heading for Azerbaijani territory from Armenia. According to HRW, as a matter of law, Armenian army troop involvement in Azerbaijan made Armenia a party to the conflict and made the war an international armed conflict between Armenia and Azerbaijan. 61. Several proposals for a solution to the conflict have been presented within the Minsk Group. A “package deal” proposal of July 1997 set out, under the heading “Agreement I – The end of armed hostilities”, a two ‑ stage process of the withdrawal of armed forces. The second stage included the provision that “[t]he armed forces of Armenia [ would] be withdrawn to within the borders of the Republic of Armenia”. The “step-by-step” approach presented in December 1997 also contained a two-stage withdrawal process and stipulated, as part of the second phase, that “[a]ll Armenian forces located outside the borders of the Republic of Armenia [ would] be withdrawn to locations within those borders”. Substantially the same wording was used in the “common state deal ” proposal of November 1998. While these documents were discussed in Minsk Group negotiations, none of them led to an agreement between Armenia and Azerbaijan. 62. The applicants referred to statements by various political leaders and observers. For instance, Mr Robert Kocharyan, then Prime Minister of the “NKR”, stated in an interview with the Armenian newspaper Golos Armenii in February 1994, that Armenia supplied anti-aircraft weapons to Nagorno-Karabakh. Moreover, Mr Vazgen Manukyan, Armenian Minister of Defence from 1992 to 1993, admitted in an interview with British journalist and writer, Thomas de Waal, in October 2000 that the public declarations stating that the Armenian army had not taken any part in the war had been purely for foreign consumption : [1] “You can be sure that whatever we said politically, the Karabakh Armenians and the Armenian army were united in military actions. It was not important for me if someone was a Karabakhi or an Armenian.” 63. The annual report of the International Institute for Strategic Studies (IISS), “The Military Balance”, for the years 2002, 2003 and 2004 assessed that, of the 18,000 troops in Nagorno-Karabakh, 8,000 were personnel from Armenia. The 2013 report stated, inter alia, that “since 1994, Armenia has controlled most of Nagorno-Karabakh, and also seven adjacent regions of Azerbaijan, often called the ‘ occupied territories ’ ”. [2] 64. Mr David Atkinson, rapporteur of the Parliamentary Assembly of the Council of Europe (PACE), stated in November 2004 in his second report to the Political Affairs Committee on “The Conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference” concerning Nagorno-Karabakh (Doc. 10364, 29 November 2004 ) as follows. “According to the information given to me, Armenians from Armenia had participated in the armed fighting over the Nagorno-Karabakh region besides local Armenians from within Azerbaijan. Today, Armenia has soldiers stationed in the Nagorno-Karabakh region and the surrounding districts, people in the region have passports of Armenia, and the Armenian government transfers large budgetary resources to this area.” Based on this report, the Parliamentary Assembly adopted on 25 January 2005 Resolution 1416 (2005) on the conflict over the Nagorno-Karabakh region dealt with by the OSCE Minsk Conference in which it noted, inter alia, as follows. “1. The Parliamentary Assembly regrets that, more than a decade after the armed hostilities started, the conflict over the Nagorno-Karabakh region remains unsolved. Hundreds of thousands of people are still displaced and live in miserable conditions. Considerable parts of the territory of Azerbaijan are still occupied by Armenian forces, and separatist forces are still in control of the Nagorno-Karabakh region. 2. The Assembly expresses its concern that the military action, and the widespread ethnic hostilities which preceded it, led to large-scale ethnic expulsion and the creation of mono-ethnic areas which resemble the terrible concept of ethnic cleansing. The Assembly reaffirms that independence and secession of a regional territory from a state may only be achieved through a lawful and peaceful process based on the democratic support of the inhabitants of such territory and not in the wake of an armed conflict leading to ethnic expulsion and the de facto annexation of such territory to another state. The Assembly reiterates that the occupation of foreign territory by a member state constitutes a grave violation of that state ’ s obligations as a member of the Council of Europe and reaffirms the right of displaced persons from the area of conflict to return to their homes safely and with dignity.” 65. In its report “Nagorno-Karabakh: Viewing the Conflict from the Ground” of 14 September 2005, the International Crisis Group (ICG) stated the following regarding the armed forces in the “NKR” (pp. 9-10). “[Nagorno-Karabakh] may be the world ’ s most militarized society. The highly trained and equipped Nagorno-Karabakh Defence Army is primarily a ground force, for which Armenia provides much of the backbone. A Nagorno-Karabakh official told Crisis Group it has some 20,000 soldiers, while an independent expert [U.S. military analyst Richard Giragosian, July 2005] estimated 18,500. An additional 20,000 to 30,000 reservists allegedly could be mobilised. Based on its population, Nagorno ‑ Karabakh cannot sustain such a large force without relying on substantial numbers of outsiders. According to an independent assessment [by Mr Giragosian], there are 8,500 Karabakh Armenians in the army and 10,000 from Armenia. ... Nevertheless, many conscripts and contracted soldiers from Armenia continue to serve in [ Nagorno- Karabakh]. The (de facto) minister of defence admits his forces have 40 per cent military contract personnel, including citizens of Armenia. He claims that no Armenian citizens are unwillingly conscripted and says 500,000 Armenians of Nagorno-Karabakh descent live in Armenia, some of whom serve in the Nagorno ‑ Karabakh forces. Former conscripts from Yerevan and other towns in Armenia have told Crisis Group they were seemingly arbitrarily sent to Nagorno ‑ Karabakh and the occupied districts immediately after presenting themselves to the recruitment bureau. They deny that they ever volunteered to go to Nagorno ‑ Karabakh or the adjacent occupied territory. They were not paid a bonus for serving outside Armenia, and they performed military service in Nagorno-Karabakh uniform, under Nagorno-Karabakh military command. Young Armenian recruits ’ opposition to serving in Nagorno-Karabakh has increased, which may help explain an apparent decrease in the numbers being sent to [ Nagorno- Karabakh]. There is a high degree of integration between the forces of Armenia and Nagorno ‑ Karabakh. Senior Armenian authorities admit they give substantial equipment and weaponry. Nagorno-Karabakh authorities also acknowledge that Armenian officers assist with training and in providing specialised skills. However, Armenia insists that none of its army units are in Nagorno-Karabakh or the occupied territories around it.” The Government objected to the report of the ICG, which organisation had no office in Armenia or the “NKR”. Furthermore, the statement on the number of Armenian servicemen in the “NKR” derived from an email with Mr Giragosian, who had been contacted by the Government and had given the following declaration: “ When I expressed this opinion I didn ’ t mean that the people serving in the Nagorno - Karabakh armed forces are soldiers. I meant that approximately that number of volunteers are involved in the Nagorno - Karabakh armed forces from Armenia and other States according to my calculations. As for the number I mentioned, I can ’ t insist that it ’ s correct as it is confidential information and nobody has the exact number. The reasoning behind my opinion was that I believe that many Armenians from different parts of the world participate in the Nagorno - Karabakh self-defence forces.” 66. On 19 April 2007 the Austrian newspaper Der Standard published an interview with the then Armenian Foreign Minister, Mr Vartan Oskanian. On the subject of the disputed territories, Mr Oskanian reportedly referred to them as “the territories, which are now controlled by Armenia”. A few days later the Armenian Embassy in Austria issued a press release stating that Mr Oskanian had been misinterpreted and that the correct expression was “the territories, which are now controlled by Armenians”. 67. On 14 March 2008 the UN General Assembly adopted a Resolution on the situation in the occupied territories of Azerbaijan (A/RES/62/243). Recalling the 1993 Security Council Resolutions (see paragraph 59 above), it contains the following passages. “The General Assembly, ... 2. Demands the immediate, complete and unconditional withdrawal of all Armenian forces from all occupied territories of the Republic of Azerbaijan; 3. Reaffirms the inalienable right of the population expelled from the occupied territories of the Republic of Azerbaijan to return to their homes, and stresses the necessity of creating appropriate conditions for this return, including the comprehensive rehabilitation of the conflict-affected territories;” 68. In an interview with Armenia Today, published on 29 October 2008, Mr Jirayr Sefilyan, a Lebanese-born Armenian military commander and political figure who was involved in the capture of the town of Shusha/Shushi in early May 1992, and later continued to serve in the armed forces of both the “NKR” and Armenia, reportedly made the following statement: “We must turn the page of history, as starting from 1991 we have considered Karabakh as an independent State and declared that they should conduct negotiations. Who are we kidding? The whole world knows that the army of the NKR is a part of the Armenian armed forces, that the budget of the NKR is financed from the budget of Armenia, and that the political leaders of the NKR are appointed from Yerevan. It is time to consider Karabakh as a part of Armenia, one of its regions. In the negotiation process the territory of Karabakh should be considered as a territory of Armenia and no territorial cession must be made.” 69. In Resolution 2009/2216(INI) of 20 May 2010 on the need for an EU strategy for the South Caucasus, the European Parliament expressed, inter alia, the following: “ The European Parliament, ... 8. is seriously concerned that hundreds of thousands of refugees and IDPs who fled their homes during or in connection with the Nagorno ‑ Karabakh war remain displaced and denied their rights, including the right to return, property rights and the right to personal security; calls on all parties to unambiguously and unconditionally recognise these rights, the need for their prompt realisation and for a prompt solution to this problem that respects the principles of international law; demands, in this regard, the withdrawal of Armenian forces from all occupied territories of Azerbaijan, accompanied by deployment of international forces to be organised with respect of the UN Charter in order to provide the necessary security guarantees in a period of transition, which will ensure the security of the population of Nagorno-Karabakh and allow the displaced persons to return to their homes and further conflicts caused by homelessness to be prevented; calls on the Armenian and Azerbaijani authorities and leaders of relevant communities to demonstrate their commitment to the creation of peaceful inter-ethnic relations through practical preparations for the return of displaced persons; considers that the situation of the IDPs and refugees should be dealt with according to international standards, including with regard to the recent PACE Recommendation 1877(2009), ‘ Europe ’ s forgotten people: protecting the human rights of long-term displaced persons ’ .” 70. On 18 April 2012 the European Parliament passed Resolution 2011/2315(INI) containing the European Parliament ’ s recommendations to the Council, the Commission and the European External Action Service on the negotiations of the EU-Armenia Association Agreement which, inter alia, noted that “deeply concerning reports exist of illegal activities exercised by Armenian troops on the occupied Azerbaijani territories, namely regular military manoeuvres, renewal of military hardware and personnel and the deepening of defensive echelons”. The European Parliament recommended that negotiations on the EU-Armenia Association Agreement be linked to commitments regarding “the withdrawal of Armenian forces from occupied territories surrounding Nagorno-Karabakh and their return to Azerbaijani control” and “ call[ ed ] on Armenia to stop sending regular army conscripts to serve in Nagorno ‑ Karabakh”. 71. The applicants submitted that, on various occasions in 2012 and 2013, the Armenian President, Minister of Defence and high-ranking military staff visited the disputed territories to inspect troops, attend military exercises and hold meetings with military and other officials in the “NKR”. In July 2013 Armenia ’ s top army generals and other military officials, including the Armenian Minister of Defence and the commanders of the armed forces of the “NKR”, held a meeting in Nagorno-Karabakh, focusing on efforts to strengthen the Armenian military. 72. On 15 January 2013 the Armenian President, Mr Serzh Sargsyan held a meeting with the leaders of the legislative, executive and judiciary branches of the Armenian Ministry of Defence. The speech he gave at the meeting was published the same day on the official website of the President of the Republic of Armenia. It contained, inter alia, the following statements. “It happened that from the first years of independence, the Army has been playing a special role in our society. It was the war, whose spirit was felt all over Armenia – in some places more than in the others. In those days, every family had a close or a distant relative in the Armenian Army; and the Army was in everyone ’ s heart. That feeling became stronger when our Army attained victory which was so important, which was vital. ... The ultimate goal of our foreign policy is the final legal formulation of the victory achieved in the aggressive war unleashed by Azerbaijan against Artsakh. The Republic of Nagorno Karabakh must be recognized by the international community since there is no logical explanation as to why the people, who have exercised their legal right for self-determination and later protected it in the uneven war, should ever be part of Azerbaijan. Why the destiny of these people should be defined by the illegal decision once made by Stalin? ... Armenia and Artsakh do not want war; however everyone must know that we will give a fitting rebuff to any challenge. The people of Artsakh will never face the danger of physical extermination again. The Republic of Armenia will guarantee against that. ... Security of Artsakh is not a matter of prestige for us; it is a matter of life and death in the most direct sense of these words. The entire world must know and realize that we, the power structures of Armenia and Artsakh stand against the army which pays wages to the murderers, if that horde can be called army in the first place.” 73. In an opinion drawn up at the request of the Government, Dr Hari Bucur-Marcu, a military expert of Romanian nationality, stated that he had found nothing in the Armenian military policy that envisaged any form of control over “NKR” forces or any indication on the ground that Armenian forces were present or active in the “NKR”. He further concluded that there was no evidence that Armenia exercised any control or authority over the “NKR” or its defence force, or that Armenian forces exercised any control over the government or governance of the “NKR”. The Government stated that Dr Bucur-Marcu had been given the opportunity to interview senior military officers in Armenia and access their records. Furthermore, by arrangement with the “NKR” Ministry of Foreign Affairs, he had been able to travel there and talk to military and political officials, as well as examine documents. 74. On 25 June 1994 an Agreement on Military Cooperation between the Governments of the Republic of Armenia and the “ Republic of Nagorno ‑ Karabakh ” (“the 1994 Military Agreement”) was concluded. It provides, inter alia, the following: “The Government of the Republic of Armenia and the Government of the Republic of Nagorno-Karabakh ( ‘ the Parties ’ ), having regard to mutual interest in the field of military cooperation, to the need to develop bilateral relationships and mutual trust through cooperation between the armed forces of the States of the Parties, seeking to strengthen the military and military-technical cooperation, agreed on the following: ... Article 3 Both Parties shall engage in the military cooperation in the following areas : 1. establishment of the army and reform of the armed forces; 2. military science and education; 3. military legislation; 4. logistics of the armed forces; 5. medical rehabilitation of military personnel and their family members; 6. cultural and sports activities and tourism. The Parties shall agree in writing whether they wish to cooperate in other areas. Article 4 The Parties shall cooperate through: 1. visits and working meetings at the level of Ministers of Defence, Chiefs of General Staff or other representatives authorised by the Ministers of Defence; 2. consultations, exchanges of experience, military staff training and skills enhancement; 3. implementation of mutual military exercises; 4. participation in conferences, consultations and seminars; 5. exchanges of information, documents and services in accordance with specific arrangements; 6. cultural events; 7. provision of military services; 8. creation of conditions for the mutual use of elements of infrastructure of the armed forces of the Parties within the framework of this Agreement; 9. education of highly qualified military and technical staff and specialists. Within the framework of cooperation under this Agreement, the Parties shall agree that conscripts from Armenia and the NKR have the right to serve their fixed-term military service in Nagorno ‑ Karabakh and Armenia respectively. In such cases, the conscripts concerned shall be considered exempt from the fixed-term military service in the territory of that State the person shall be considered exempt from the fixed-term military service in the country of their citizenship. Article 5 Within the framework of this Agreement, the Parties shall also agree that 1. should an Armenian citizen serving fixed-term military service in the NKR commit a military crime, the criminal prosecution and trial against him or her shall be conducted on Armenian territory by Armenian authorities in accordance with the procedure established under Armenian legislation; 2. should a citizen of the NKR serving fixed-term military service in Armenia commit a military crime, the criminal prosecution and trial against him or her shall be conducted on the territory of the NKR by the authorities of the NKR in accordance with the procedure established under NKR legislation. Within the framework of this Agreement the Parties will provide mutual technical support with regard to armament and recovery and maintenance of military equipment. Concluding agreements with those performing activities on armament and recovery and maintenance of military equipment, as well as ensuring the living conditions of the representatives of manufacturing enterprises in the territory of the States of the Parties shall be carried out by the Ministry of Defence of the client State. Other forms of cooperation shall be conducted upon mutual written agreement. ...” 75. The Government asserted that the Armenian conscripts who, pursuant to Article 4 of the Agreement, performed their service in the “NKR” were mainly in the lower ranks and comprised no more than 5% (up to 1,500 persons) of the “NKR” defence force. However, the Government did not rule out the possibility that some Armenian nationals may have served in the “NKR” defence force on a contractual and voluntary basis. Among those serving in the “NKR” defence force, side by side with inhabitants of Nagorno-Karabakh, were also volunteers of Armenian origin from various countries where there is an Armenian diaspora. Allegedly, the Armenian soldiers serving in the “NKR” were under the direct command of the “NKR” defence force, which was the only armed force operational in the “NKR”. The Government maintained that the Armenian conscripts serving in the “NKR” under the Agreement did so of their own accord (see, however, the ICG report, paragraph 65 above). The Government further stated that the Armenian army and the “NKR” defence force cooperate in a defence alliance on matters such as intelligence sharing, visits of senior officers, seminars, joint military exercises, parade inspections and the like. 76. On 11 October 2007 the Court issued a partial decision as to the admissibility of Zalyan, Sargsyan and Serobyan v. Armenia ( ( dec.), nos. 36894/04 and 3521/07, 11 October 2007 ), which concerns the alleged ill ‑ treatment and unlawful detention of three military servicemen. The facts of the case reveal that the applicants had been drafted into the Armenian army in May 2003 and had been assigned to military unit no. 33651, stationed near the village of Mataghis in the Martakert region of the “NKR”. Two servicemen of the same military unit were found dead in January 2004. A criminal investigation into their murders ensued and the applicants were questioned for a number of days in April 2004 in Nagorno-Karabakh – first at their military unit, then at the Martakert Garrison Military Prosecutor ’ s Office and finally at the Stepanakert Military Police Department – before being transported to Yerevan for further proceedings. The officers conducting the questioning of the applicants in Nagorno-Karabakh included two investigators of the Military Prosecutor ’ s Office of Armenia, an investigator of the Martakert Garrison Military Prosecutor ’ s Office and an Armenian military police officer. A chief of battalion of the military unit was also present at the first questioning. The applicants were subsequently charged with murder and the criminal trial against them commenced in November 2004 at the Syunik Regional Court ’s seat in Stepanakert. The applicants were present at the trial. On 18 May 2005 the court found the applicants guilty of murder and sentenced them to fifteen years ’ imprisonment. 77. Similarly, as reported by the human rights organisation Forum 18, as well as HRW, Mr Armen Grigoryan, an Armenian citizen and conscientious objector, was taken from a military recruitment office in Yerevan in June 2004 and transferred to a military unit based in Nagorno-Karabakh. Having fled the unit, Mr Grigoryan was arrested and eventually found guilty of having refused military service by a court sitting in Stepanakert on 9 June 2005 and sentenced to two years ’ imprisonment. 2. Political and judicial connections 78. Several prominent Armenian politicians have held, at different times, high positions in both Armenia and the “NKR”, or have had close ties to Nagorno-Karabakh. The first Armenian President, Mr Levon Ter-Petrosyan, was a member of the Armenian “Karabakh Committee” which, in the late 1980s, led the movement for unification of Nagorno-Karabakh with Armenia. In April 1998 he was succeeded as Armenian President by Mr Robert Kocharyan, who had previously served as Prime Minister of the “NKR” from August 1992 to December 1994, as President of the “NKR” from December 1994 to March 1997 and as Armenian Prime Minister from March 1997 to April 1998. In April 2008 Mr Serzh Sargsyan became the third Armenian President. In August 1993 he had been appointed Armenian Minister of Defence after serving from 1989 to 1993 as Chairman of the “Self-Defense Forces Committee of the Republic of Nagorno-Karabakh ”. Furthermore, in 2007 Mr Seyran Ohanyan switched from being the Minister of Defence of the “NKR” to becoming the Commander-in- Chief of the Armenian armed forces. In April 2008 he was appointed Armenian Minister of Defence. 79. The applicants claimed that Armenian law applies in the “NKR”. However, according to the Government, between January 1992 and August 2006 the “NKR” adopted 609 different laws, one of the first being the Law on the basis of the State independence of the “ Republic of Nagorno-Karabakh ”. Article 2 of this Law provides that the “NKR decides independently all issues concerning the Republic ’ s political, economic, social and cultural, construction, administrative and territorial division policies”. Furthermore, in January 1992 bodies of executive and judicial power were created, including the Council of Ministers ( its government), the Supreme Court and first - instance courts of the “NKR”, as well as the “NKR” prosecutor ’ s office. The “NKR” also has its own President, Parliament and police force, as well as local self-government bodies, including administrations governing the territories surrounding the “NKR”, whose representatives are appointed by “NKR” authorities. It also holds its own presidential and parliamentary elections. While several laws have been adopted from Armenian legislation, the Government maintained that they did not apply automatically, that is, by decisions of Armenian courts, but were independently interpreted and applied by “NKR” courts, whether in the district of Lachin or elsewhere. 3. Financial and other support 80. In its 2005 report ( see paragraph 65 above,), the ICG stated the following (pp. 12-13). “The economy of Nagorno-Karabakh was previously integrated into [that of] Soviet Azerbaijan but was largely destroyed by the war. Today it is closely tied to Armenia and highly dependent on its financial inputs. All transactions are done via Armenia, and products produced in Nagorno-Karabakh often are labelled ‘ made in Armenia ’ for export. Yerevan provides half the budget. ... Nagorno-Karabakh is highly dependent on external financial support, primarily from Armenia but also from the U.S. and the world-wide diaspora. It cannot collect sufficient revenue to meet its budgetary needs, and in absolute terms is receiving increasing external support. The 2005 budget totalled 24.18 billion drams (some $53.73 million). Locally collected revenues are expected to total 6.46 billion drams (about $14.35 million), 26.7 per cent of expenditures. Since 1993 Nagorno-Karabakh has benefited from an Armenian ‘ inter-state loan ’. According to the Armenian prime minister, this will be 13 billion drams ($28.88 million) in 2005, a significant increase from 2002 when it was 9 billion drams ($16.07 million). However, Nagorno-Karabakh ’ s (de facto) prime minister argues that part of this loan – 4.259 billion drams (about $9.46 million) – is in fact Armenia ’ s repayment of VAT, customs and excise duties that Armenia levies on goods that pass through its territory, destined for Nagorno-Karabakh. The remainder of the loan has a ten-year repayment period at nominal interest. Though Armenia has provided such loans since 1993, nothing has been repaid. According to the Armenian prime minister, Stepanakert ‘ is not yet in a position to repay .... In the coming years we will need to continue providing this loan to help them continue building their infrastructure ... we do not envision that they will be able to go ahead on their own anytime soon ’. The U.S. is the only other state that provides direct governmental assistance. In 1998 Congress for the first time designated Nagorno-Karabakh a recipient of humanitarian aid distinct from Azerbaijan. The U.S. money is administered by its Agency for International Development (USAID), which has distributed it to such NGOs as the Fund for Armenian Relief, Save the Children, and the International Committee of the Red Cross. Through September 2004, the U.S. had pledged $23,274,992 to Nagorno ‑ Karabakh and had spent $17,831,608. Armenian lobby groups have been influential in making these allocations possible.” The ICG further stated that the Armenian “inter-state loan” had accounted for 67.3% of the “NKR” budget in 2001 (according to the “Statistical Yearbook of Nagorno-Karabakh”) and 56.9% in 2004 (according to an ICG communication with the NK National Statistical Service Director ). 81. The loan provided by Armenia to the “NKR” for the years 2004 and 2005 amounted to USD 51 million. USD 40 million went to rebuilding educational institutions and USD 11 million to help the families of soldiers killed in action. 82. The Hayastan All-Armenian Fund (“the Fund”) was founded by an Armenian presidential decree on 3 March 1992. According to its official website, its mission is the following: “[T]o unite Armenians in Armenia and overseas to overcome the country ’ s difficulties and to help establish sustainable development in Armenia and Artsakh. In addition to [the] problems associated with the break-up of the Soviet Union, the government had to find solutions to the aftermath of the 1988 Spitak earthquake, an economic blockade and the rehabilitation of areas that had suffered from the Artsakh conflict.” The Fund ’ s 2012 annual report includes messages from Mr Serzh Sargsyan, Armenian President, and Mr Bako Sahakyan, “ President of the Republic of Artsakh”, which, inter alia, contain the following statements. Mr Sargsyan: “The Hayastan All-Armenian Fund is an embodiment of the unity between Armenia, Artsakh and the diaspora. As such, the fund is consistently, resolutely, and before our very eyes transforming our pan-national inner strength into tangible power.” Mr Sahakyan: “The year 2012 was a jubilee year for the Armenian people. As a nation, we celebrated the 20th anniversary of the founding of the NKR Defense Army and the liberation of Shushi, a magnificent victory which was made possible by the united efforts and indestructible will of the entire Armenian people, the selfless bravery and daring of its valiant sons and daughters.” The Fund has twenty-five affiliates in twenty-two different countries. Its resources come from individual donations, mainly from members of the Armenian diaspora. It now raises about USD 21 million annually. The Board of Trustees is the Fund ’ s supreme governing body. Under the Fund ’ s Charter, the Armenian President is ex officio the President of the Board of Trustees. The Board, which during its existence has had between twenty-two and thirty-seven members, includes many prominent individuals and representatives of political, non-governmental, religious and humanitarian institutions from Armenia and the diaspora. In 2013 the Board, in addition to the Armenian President, Mr Sargsyan, comprised the former Armenian President, Mr Kocharyan; the Armenian Prime Minister, as well as the Ministers of Foreign Affairs, Finance and Diaspora; the President, former President and Prime Minister of the “NKR”; the Chairmen of the Armenian Constitutional Court, National Assembly and Central Bank; four Armenian religious leaders; three representatives of Armenian political parties; a representative of the Union of Manufacturers and Businessmen (Employers) of Armenia; and representatives of four non-governmental organisations incorporated in the United States of America and Canada. The remainder of the thirty-seven person Board was made up of thirteen individuals from the Armenian diaspora. The composition of the Board has been similar since the Fund ’ s creation. The Fund has financed and overseen numerous projects since its establishment, including the construction and renovation of roads, housing, schools, hospitals, as well as water and gas networks. In the mid to late 1990s it constructed the highway linking the town of Goris in Armenia with Lachin and with Shusha/Shushi and Stepanakert in Nagorno ‑ Karabakh. In 2001 it financed the construction of the north-south highway in Nagorno-Karabakh. According to the Fund ’ s 2005 annual report, it had paid approximately USD 11 million during the year for various projects, of which about USD 6. 1 million had gone to projects in Nagorno ‑ Karabakh. According to figures provided by the Government, the not fully complete expenditure for 2012 amounted to USD 10. 7 million in Nagorno-Karabakh and USD 3. 1 million in Armenia. Also according to Government figures, in 1995-2012 the fund allocated about USD 111 million in total – or about USD 6 million annually – to projects in Nagorno-Karabakh. In 1992-2012 it allocated USD 115 million to projects in Armenia. 83. The applicants and the Azerbaijani Government claimed that residents of the “NKR” and the surrounding territories are routinely issued with Armenian passports. In its 2005 report (see paragraph 65 above), the ICG stated that “Armenia has given a majority of the inhabitants its passports for travel abroad” ( at p. 5). The Azerbaijani Government also pointed to the possibility for residents of the mentioned territories to acquire Armenian citizenship. They referred to section 13 (“Citizenship by Naturalisation”) of the Law of the Republic of Armenia on citizenship of the Republic of Armenia, which provides as follows. “Any person who is eighteen or older and capable of working that is not an RA citizen may apply for RA citizenship, if he/she : ( 1) has been lawfully residing on the territory of the Republic of Armenia for the preceding three years; ( 2) is proficient in the Armenian language; and ( 3) is familiar with the Constitution of the Republic of Armenia. A person who is not an RA citizen may be granted RA citizenship without being subject to the conditions set forth in subsections ( 1) and ( 2) of the first part of this section, if he/she: ( 1) marries a citizen of the Republic of Armenia or has a child who holds RA citizenship; ( 2) has parents or at least one parent that had held RA citizenship in the past or was born on the territory of the Republic of Armenia and had applied for RA citizenship within three years of attaining the age of 18; ( 3) is Armenian by origin (is of Armenian ancestry); or ( 4) has renounced RA citizenship of his/her own accord after 1 January 1995.” The respondent Government, for their part, stated that both Armenia and the “NKR” have provisions for dual citizenship. Moreover, in accordance with an Agreement of 24 February 1999 with the “NKR” on the organisation of the passport system, Armenia issues passports to residents of the “NKR” in certain circumstances. Article 1 of the Agreement reads as follows. “The Parties agree that their citizens have the right to free movement and residence on the territory of each of the Parties. Within the scope of this Agreement, until the Republic of Nagorno-Karabakh is internationally recognised, the citizens of the Republic of Nagorno-Karabakh wishing to leave the territory of either the Republic of Nagorno-Karabakh or the Republic of Armenia may apply for and obtain an Armenian passport. The Parties agree that, within the scope of this Article, the obtaining of an Armenian passport by citizens of the Republic of Nagorno-Karabakh does not confer on them Armenian citizenship. Those passports may only be used for travel outside the territories of the Republic of Armenia and the Republic of Nagorno-Karabakh by citizens of the Republic of Nagorno-Karabakh, and cannot be used as an identification document for internal use in the Republic of Nagorno ‑ Karabakh or in the Republic of Armenia.” Regulations on the application of this Agreement were also issued in 1999 and provide that an Armenian passport shall be issued to an “NKR” resident only in exceptional cases where the purpose for going abroad is medical, educational or concerns another personal matter. The Government asserted that fewer than 1, 000 persons had been issued with a passport under the 1999 Agreement. 84. The applicants and the Azerbaijani Government stated that the Armenian dram was the main currency in the “NKR”, whereas the respondent Government maintained that the currencies accepted there also included euros, United States dollars, pounds sterling and even Australian dollars. 85. The Azerbaijani Government pointed out that the National Atlas of Armenia, published in 2007 by the State Committee of the Real Estate Cadastre, adjunct to the Armenian Government, and thus allegedly an official publication, consistently incorporated the “NKR” and the surrounding occupied territories within the boundaries of the Republic of Armenia on various types of maps. 86. The applicants and the Azerbaijani Government submitted that the Armenian Government has a policy of encouraging settlers to move to the “NKR” from Armenia and, more recently, Syria. In February 2005 the “Report of the OSCE Fact ‑ Finding Mission (FFM) to the Occupied Territories of Azerbaijan Surrounding Nagorno-Karabakh (NK)” was published. The mandate of the FFM was to determine whether settlements existed in the territories; military structures and personnel as well as political considerations were strictly outside that mandate. In regard to settlements in the district of Lachin, the Report concluded: “Generally, the pattern of settlers ’ origins in Lachin is the same as in the other territories. Thus, the overwhelming majority has come to Lachin from various parts of Azerbaijan, mostly after years of living in temporary shelters in Armenia. A comparatively small minority are Armenians from Armenia, including earthquake victims. They heard about Lachin as a settlement options [ sic ] by word-of-mouth, through the media or from NGOs in Armenia and NK. There was no evidence of non ‑ voluntary resettlement or systematic recruitment.” The Report further stated. “The direct involvement of NK in Lachin District is uncontested. Nagorno ‑ Karabakh provides the Lachin budget and openly acknowledges direct responsibility for the district. Lachin residents take part both in local and NK elections. While the links between Nagorno Karabakh and the Republic of Armenia remain outside the purview of this report, the FFM found no evidence of direct involvement of the government of Armenia in Lachin settlement. However, the FFM did interview certain Lachin residents who had Armenian passports and claimed to take part in Armenian elections.” II. THE JOINT UNDERTAKING OF ARMENIA AND AZERBAIJAN 87. Prior to their accession to the Council of Europe, Armenia and Azerbaijan gave undertakings to the Committee of Ministers and the Parliamentary Assembly committing themselves to the peaceful settlement of the Nagorno-Karabakh conflict (see Parliamentary Assembly Opinions 221 (2000) and 222 (2000) and Committee of Ministers Resolutions Res(2000)13 and Res (2000)14). The relevant paragraphs of Parliamentary Assembly Opinion 221 (2000) on Armenia ’ s application for membership of the Council of Europe read as follows. “10. The Assembly takes note of the letter from the President of Armenia in which he undertakes to respect the cease-fire agreement until a final solution is found to the conflict [in Nagorno-Karabakh] and to continue the efforts to reach a peaceful negotiated settlement on the basis of compromises acceptable to all parties concerned. ... 13. The Parliamentary Assembly takes note of the letters from the President of Armenia, the speaker of the parliament, the Prime Minister and the chairmen of the political parties represented in the parliament, and notes that Armenia undertakes to honour the following commitments: ... 13. 2 the conflict in Nagorno-Karabakh: a. to pursue efforts to settle this conflict by peaceful means only; b. to use its considerable influence over the Armenians in Nagorno-Karabakh to foster a solution to the conflict; c. to settle international and domestic disputes by peaceful means and according to the principles of international law (an obligation incumbent on all Council of Europe member states), resolutely rejecting any threatened use of force against its neighbours; ...” Resolution Res(2000)13 of the Committee of Ministers on the Invitation to Armenia to become a member of the Council of Europe referred to the commitments entered into by Armenia, as set out in Opinion 221 (2000), and the assurances for their fulfilment given by the Armenian government. | This case concerned the complaints by six Azerbaijani refugees that they were unable to return to their homes and property in the district of Lachin, in Azerbaijan, from where they had been forced to flee in 1992 during the Armenian-Azerbaijani conflict over Nagorno-Karabakh3. |
216 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born on 30 April 1980 and lives in Belgium. 6. On 29 September 1995 a certain Mr Özcan Atik was arrested on suspicion of membership of the PKK [1]. The following day the applicant was arrested in Istanbul upon information allegedly given to the police by Mr Atik. According to that information, the applicant was a member of the PKK. Following his arrest the applicant was placed in police custody. 7. The applicant was questioned by police officers on 5 October 1995. In a written statement prepared by the police and signed by him, the applicant was quoted as having stated that he was a member of the PKK and that he had had a number of meetings with several of its members, including Özcan Atik. One day Özcan Atik had told the applicant that he had asked a certain Menderes Koçak to provide financial assistance to the PKK but that Mr Koçak had refused. Özcan Atik had then asked the applicant to help him set fire to a vehicle owned by Mr Koçak. This they had done one evening with the help of two other persons. The applicant also added that had he not been arrested, he would have taken part in further activities on behalf of the PKK. 8. On 7 October 1995 Mr Koçak identified Mr Atik and another person as the persons who had asked him to give money to the PKK. He did not know whether it had been the same two persons who had subsequently set fire to his vehicle and shop. 9. On 9 October 1995 police officers took the applicant and three other persons, including Mr Atik, to the street where Mr Koçak ’ s vehicle had been set on fire. 10. On 12 October 1995 the applicant and 21 other persons who had been arrested as part of the same police operation were taken to the Istanbul branch of the Forensic Medicine Institute, where they were examined by a doctor. According to the medical report drawn up the same day, the applicant ’ s body did not bear any signs of ill-treatment. 11. The same day the applicant was taken to the Istanbul State Security Court, where he was questioned by a prosecutor and then by a judge who ordered his detention in prison pending the introduction of criminal proceedings against him. In the statement drawn up by the prosecutor the applicant was quoted as having stated that he was a sympathiser but not a member of the PKK. He had set fire to the vehicle together with three other persons. In the statement drawn up by the judge, however, the applicant was quoted as having stated that he had set fire to the vehicle on his own. 12. When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer. 13. On 27 November 1995 the prosecutor at the Istanbul State Security Court filed an indictment with that court, charging the applicant and fifteen other persons with the offence of carrying out activities for the purpose of bringing about the secession of part of the national territory. According to Article 125 of the Criminal Code in force at the time, the punishment stipulated for this offence was the death penalty (see Relevant Domestic Law and Practice below). 14. A preparatory hearing was held on 18 December 1995 by the Istanbul State Security Court (hereinafter “the trial court”). One of the three judges on the bench was an army officer. 15. At the first hearing, held on 27 February 1996, the applicant was present but not represented by a lawyer. 16. During the second hearing, held on 1 March 1996, the applicant was still not represented by a lawyer but was questioned by the trial court. The applicant told the trial court that his childhood friend Özcan Atik had told him one day that he had been selling newspapers and that one of his customers had refused to pay. Mr Atik had then suggested “ teaching that customer a lesson ”. One night the applicant and Mr Atik had arrived outside a big building. Mr Atik had poured some petrol on the street outside the building from a jerry can and set fire to it. The applicant himself had not set fire to any vehicle and he did not know Menderes Koçak. 17. The applicant also told the trial court that, while detained in police custody, he had been given electric shocks, sprayed with pressurised water and beaten with a truncheon; the soles of his feet had also been beaten. He had then signed the statements implicating him in the offences with which he was subsequently charged. As regards the statements taken from him by the prosecutor and the judge on 12 October 1995, the applicant stated that the prosecutor and the judge had only asked him his date of birth; he had not made any statements before them. The applicant also denied that the police had taken him to the place where he had allegedly set fire to a vehicle (see paragraph 9 above). The applicant ’ s request for release was rejected by the trial court the same day. 18. During the third hearing held on 18 April 1996, a lawyer representing some of the applicant ’ s co-accused informed the trial court that she would also be representing the applicant. During the same hearing Menderes Koçak also gave evidence as a witness and stated that Özcan Atik had never asked him to give money to the PKK. A vehicle owned by him had been set on fire but he did not think Özcan Atik had done it. 19. The applicant was subjected to a limited visiting regime in the prison and did not have the opportunity to have open visits with his family. 20. The applicant did not attend four of the subsequent six hearings held at two - monthly intervals. Requests for his release made by his lawyer were all rejected by the trial court. The lawyer argued that there was no evidence against the applicant other than that obtained under ill-treatment. 21. In the course of the 10th hearing, which was held on 29 May 1997 in the applicant ’ s absence but with the attendance of his lawyer, the prosecutor asked the trial court to try the applicant for the offences of membership of an illegal organisation and causing damage to property, and not for the offence with which he was charged in the indictment (see paragraph 13 above). The trial court rejected the request for the applicant ’ s release. 22. The applicant ’ s lawyer did not attend the 11th hearing held on 17 July 1997. During the 12 th hearing, on 26 August 1997, the lawyer argued that, on account of the testimony given to the trial court by Mr Koçak on 18 April 1996 (see paragraph 18 above), there was no evidence showing that the applicant had committed the offences with which he was charged. 23. The lawyer did not attend the 13th hearing, held on 2 October 1997, because she had other business before a Labour Court. The applicant made his own defence submissions and repeated his allegations of ill-treatment in police custody. He also asked to be released. This request was rejected by the trial court. 24. On 17 October 1997 the trial court found the applicant guilty of membership of an illegal organisation and of setting fire to a motor vehicle, and sentenced him to nine years, eight months and ten days ’ imprisonment. The trial court considered that the statements given by the applicant in police custody and the statements given by his co-accused showed that the applicant was a member of the illegal organisation and that he had set fire to the vehicle. 25. The applicant appealed. On 12 March 1998 the Court of Cassation quashed the applicant ’ s conviction. The case was remitted to the trial court for a retrial. 26. On 11 September 1998 the trial court held a preparatory hearing in the retrial. One of the three judges on the bench was a military officer. 27. Eight hearings were held between 27 October 1998 and 3 0 December 1999. The applicant ’ s lawyer attended only one of these hearings, that on 18 March 1999, whereas the applicant attended two hearings. During the 5th hearing, held on 15 July 1999, the military judge was replaced by a civilian judge in accordance with the legislation which had entered into force in the meantime ( cf. Öcalan v. Turkey [GC], no. 46221/99, §§ 2-54, ECHR 2005 ‑ IV). 28. On 18 November 1999 a police chief informed the trial court that, contrary to the allegations, no vehicle belonging to Menderes Koçak had been set on fire. 29. A 9th hearing was held on 21 March 2000. The applicant was present but his lawyer was not. During the hearing Menderes Koçak gave evidence before the trial court and stated that his vehicle had not been burned. No one had asked him to give money to the PKK. When asked by the trial court to explain the inconsistencies between the statement he had made to the police on 7 October 1995 (see paragraph 8 above) and his testimony, Mr Koçak stated that he had not told any such things to the police; he had had to sign whatever was written in the statement drafted by the police officers. 30. During the same hearing the applicant reiterated that he did not know Mr Koçak and had not set fire to any vehicle. He pointed out that he had been arrested at the age of 15 with no evidence against him, and asked to be released. This request was rejected by the trial court. 31. The applicant but not his lawyer attended the 10 th hearing, held on 23 May 2000. 32. In the course of the 11 th hearing, held on 25 July 2000 in the absence of the applicant ’ s lawyer, the trial court was presented with a letter drafted by the applicant ’ s cell - mates. The letter states that “[the applicant] has serious psychiatric problems. His treatment is being overseen by a psychiatric hospital in Istanbul. He is unable to live without the assistance of others and his health is deteriorating. As such, he is unable to attend the hearings and he refused to attend today ’ s hearing. We felt the need to send you this letter because we have found out that his lawyer has not been attending the hearings ”. 33. According to a medical report prepared by the prison doctor on 24 July 2000 which was appended to the cell - mates ’ letter, the applicant had been taken to a psychiatric hospital on 2 June 2000 and returned to the prison on 11 July 2000. 34. The applicant ’ s mother also attended this hearing and informed the trial court of the applicant ’ s serious psychiatric problems. She asked for the applicant to be released from the prison. During the same hearing the prosecutor asked the trial court to acquit the applicant of the charge of arson (Article 516 § 7 of the Criminal Code) but to convict him of the offence of membership of an illegal organisation (Article 168 of the Criminal Code). 35. Nevertheless, the trial court ordered the applicant ’ s continued detention in prison and referred him to a psychiatric hospital with a view to establishing whether he had the necessary criminal capacity ( doli capax ) at the time of the alleged commission of the offence. 36. On 7 August 2000 the prison doctor reported on the problems which the applicant had been suffering in prison. According to this report, the applicant had attempted suicide in June 1999 by taking an overdose. In August 1999 he had set himself on fire and suffered extensive and serious burns. He had spent three months in hospital where he was treated for his injuries. During that time in hospital he had also received medication for depression. Following his return to the prison his treatment for the burns had continued for five months. His body still bore burn marks. 37. On 2 June 2000 the applicant ’ s psychological health had deteriorated and he was taken to hospital, where he stayed for a month and a half. His health had deteriorated even further following his return from the hospital and he was now refusing to speak to anyone. 38. The prison doctor concluded in his report that the situation in the prison was not compatible with the applicant ’ s treatment. The applicant needed to spend a considerable time in a specialised hospital. 39. During the 12th hearing, held on 10 October 2000, Ms Mükrime Avcı, one of the applicant ’ s legal representatives named above (see paragraph 2 ), submitted a power of attorney to the trial court and informed that court that she was taking over the applicant ’ s representation. Ms Avcı argued in her written observations submitted to the trial court the same day that the applicant had only been 15 years old at the time of his arrest. Turkey was a Party to the United Nations Convention on the Rights of the Child. Article 40 § 3 of that Convention recommended that the States Parties establish procedures and institutions specifically for children charged with criminal offences. Indeed, juvenile courts existed in Turkey. However, the applicant had been charged with an offence falling within the jurisdiction of State Security Courts and, as such, the domestic law prevented him from being tried by a juvenile court. Had the applicant been tried before a juvenile court, he would not have been kept in police custody for 12 days, a lawyer would have been appointed to represent him and his case would have been concluded within a short time. 40. The lawyer added that the ill-treatment to which the applicant had been subjected in police custody, coupled with his long detention in prison, had been too much to bear for a child of his age. He had attempted to take his own life on two occasions. He was still suffering from serious psychiatric problems and he found it difficult to attend the hearings. The lawyer asked for the applicant to be released so that he could receive medical treatment. 41. The lawyer also informed the trial court that the applicant had not been taken to the hospital despite the court order of 25 July 2000 (see paragraph 35 above). The same day the trial court ordered the applicant ’ s release from prison on bail. 42. The applicant attended the 14 th hearing, held on 13 March 2001 and informed the trial court that, although he had gone to the hospital for a medical examination, the hospital authorities had refused to examine him as he had no official letter of referral. The trial court issued a new order of referral. 43. The applicant was examined at a psychiatric hospital on 25 April 2001. According to the report pertaining to that examination, other than the two instances referred to above (see paragraph 36 ), the applicant had made another attempt to kill himself, by slashing his wrists, in September 1998. The extensive burn marks on his arms and body were still visible. His psychological complaints had started during his detention in prison and had worsened in the course of the time he spent there. Between 2 June 2000 and 11 July 2000 he had been treated in hospital for “major depression”. His psychological problems were now in remission. It was concluded in the report that the applicant had not been suffering psychological problems at the time of the commission of the offence and that his current mental state did not affect his criminal responsibility. 44. In its 1 6 th hearing, held on 22 May 2001, the trial court acquitted the applicant of the arson charge but found him guilty of membership of an illegal organisation and sentenced him to eight years and four months ’ imprisonment. The trial court stated that the statements made by the applicant in police custody, and then before the prosecutor and the judge at the end of his police custody, had been decisive in reaching the conclusion that he was a member of the illegal organisation. In those statements the applicant had described the “various activities” in which he had been involved. The trial court also concluded that the applicant had been involved in the printing and distribution of illegal leaflets. 45. The applicant appealed. On 13 March 2002 the prosecutor at the Court of Cassation submitted his written observations to that court and asked for the applicant ’ s conviction to be upheld. These observations were not communicated to the applicant or to his lawyer. 46. In her detailed appeal submissions the applicant ’ s lawyer pointed out that the only evidence put forward by the prosecution in support of the allegation that her client was a member of the illegal organisation had been the allegation concerning the burning of a vehicle. As established by the trial court, however, no such incident had occurred and the owner of the vehicle had made no such complaint. There was no place in the Turkish legal system for abstract concepts such as “various activities” (see paragraph 44 above). For any activity to be relied on in evidence, it should have been set out clearly and supported with adequate evidence. Furthermore, the trial court ’ s judgment was silent as to why and how it was concluded that the applicant had been involved in the printing and distribution of the illegal organisation ’ s leaflets. The lawyer also reiterated her arguments concerning the applicant ’ s age and her references to the United Nations Convention on the Rights of the Child (see paragraph 39 above). 47. On 20 May 2002 the Court of Cassation upheld the applicant ’ s conviction. 48. According to the information provided to the Court by the applicant ’ s lawyer, in 2002 the applicant left Turkey for Belgium, where he was subsequently granted refugee status. | This case concerned in particular the inability of a minor defendant to participate effectively in his criminal trial and lack of adequate legal representation. When questioned by the police, and subsequently by the prosecutor and the judge, the applicant was not represented by a lawyer. During the retrial, both the applicant and his lawyer were absent from most of the hearings. |
933 | Concurrent judicial functions in the same case | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant formed five construction companies to build catering and accommodation facilities at the request of the Olympic Games Organisation Committee ( “the OGOC”). He was the manager of the companies. He held 99% of the shares in one of the companies, which was the sole shareholder in the other four. He also acted as guarantor of virtually all the companies' debts. 10. As the works were not completed within the agreed period, the OGOC suspended payment for them. On 24 February 1992 the applicant lodged a declaration of insolvency on behalf of the companies with the registry of the Nanterre Commercial Court. 11. On 25 February 1992 the Nanterre Commercial Court made an order for the judicial reorganisation of the applicant's five companies. It named Mr A. as the insolvency judge, and also appointed a deputy insolvency judge, a judicial administrator and a creditors' representative. It ordered a six-month observation period during which the judicial administrator was to draw up a report on the companies' finances and labour force with his recommendations as to whether the companies should continue or cease trading. The observation period was renewed twice. 12. During the observation period, the insolvency judge made various orders, namely: orders for the appointment of an expert on management supervision (11 March 1992), a valuer (6 April 1992) and an accountant (22 April 1992); orders declaring claims time-barred (two orders were made on 13 October 1992 and others on 16 November 1992, 17 February 1993, 10 and 30 March 1993, 5 May 1993, 1 June 1993 and 25 March 1994); orders for the restitution of equipment (on 8 September, 14 December 1992 and 30 March 1993); an order authorising the applicant's intervention in the management of the hotels (on 15 September 1992); an order dismissing applications for the restitution of equipment (16 November 1992); orders for an action to be brought against one of the other contracting parties and for other measures (on the same date) and for the restitution of equipment (30 March 1993); orders dismissing thirteen members of staff (7 April 1992) and a further member of staff (8 September 1992); and lastly an order for the freezing of accounts (8 September 1992). 13. On 23 September 1993 the judicial administrator asked the Commercial Court to decide whether to accept the applicant's proposals for its recovery through continued trade. 14. The applicant appeared at the hearing and gave evidence as the manager of the companies concerned. The judicial administrator and the creditors' representative also made oral submissions. The judicial administrator presented a report in which he explained to the Commercial Court the history of the dealings which had led to the applicant's filing in insolvency. He then related to the court events during the observation period. He stressed that the applicant's recovery plan had been accepted by a majority of the creditors. He raised doubts over certain issues and said that it was for the applicant to dispel those doubts by putting up financial and professional guarantees. 15. The Commercial Court decided (on application by State Counsel's Office) that before approving the applicant's proposed recovery plan, it needed to be satisfied that the companies' continued economic activity would be permanent. For that purpose, it needed financial and professional guarantees from the applicant. It therefore asked him to produce certain additional documents so that it could be sure that the guarantees existed. The applicant lodged an additional file in response to that request. In the light of the new file lodged by the applicant, the administrator filed a supplemental report. 16. On 26 October 1993 the Commercial Court terminated the observation period and put the five companies into compulsory liquidation. It held that the proposed recovery plan was not accompanied by sufficiently reliable guarantees to ensure that the companies could continue as a going concern. The judgment contained, inter alia, the following passages: “Consequently the Court must find that the proposed plan is not accompanied by the guarantees required to ensure its future economic activity in a difficult sector. Pursuant to the provisions of sections 1, 36 and 146 of Law no. 85-98 of 25 January 1985, it therefore orders the compulsory liquidation of the aforementioned companies in accordance with the provisions of Chapter III of that statute and holds as follows. FOR THESE REASONS The Court, sitting in public and as a court of first instance, Having examined the insolvency judge's report, Having examined the judicial administrator's report ... Terminates the observation period ...” 17. The Commercial Court reassigned the case to the insolvency judge, decreed that the administrator's mission had been completed and appointed the creditors' representative as liquidator of the companies. The insolvency judge sat on the bench that delivered that judgment in his capacity as President of the Chamber. He was assisted by the Vice-President of the Commercial Court and another judge. 18. In a judgment of 31 January 1994, the Versailles Court of Appeal upheld the Commercial Court 's judgment in its entirety. It delivered its decision after examining the applicant's recovery plan, the judicial administrator's report and the liquidator's submissions. The applicant attended the hearing and made oral observations. On 7 April 1994 the applicant appealed to the Court of Cassation. He put forward two grounds of appeal based on Article 6 of the Convention. On 23 January 1996 the Court of Cassation dismissed the appeal. The applicant had argued that the Commercial Court had not been impartial because the insolvency judge had sat on the bench of the Commercial Court that had ordered the companies' liquidation after playing an active role in the period of observation of the companies. The Court of Cassation met the argument as follows: “... the fact that, in accordance with Article 24 of the decree of 27 December 1985, the insolvency judge sat on the bench that made the order for compulsory liquidation is not contrary to the provisions of Article 6 § 1 of the European Convention on Human Rights; that ground of appeal is unfounded; ...” The applicant's second ground of appeal read as follows: “... the insolvency judge's report and accompanying documents were not communicated to the appellants. In that regard the hearing was not fair for the purposes of Article 6 § 1 of the Convention and the rights of the defence were not respected within the meaning of Article 16 of the New Code of Civil Procedure. A hearing can only be said to be fair – again for the purposes of the European Convention – if equality of arms is ensured, in other words, if each party is aware of all the matters on which the court will rely in coming to its decision. Among those matters, the insolvency judge's report plays a paramount role in helping the court to reach its decision. However, it is deemed privileged information to which the debtor is unable to have access (it is not communicated, does not appear in the official case file which may be communicated and is not read out at the hearing). Nor, consequently, may he contest it. The principle of a fair hearing is thus infringed for the purposes of the Convention and the rights of the defence under the New Code of Civil Procedure denied. The Court of Cassation answered that argument as follows: “... Article 111 of the decree of 27 December 1985 provides that the insolvency judge's report may be presented orally; that provision is not contrary to Article 6 of the European Convention on Human Rights. Accordingly, since the applicant has not submitted that the insolvency judge did not present his report orally, this ground of appeal cannot succeed ...” The applicant also raised a ground of appeal based on the fact that the Court of Appeal had failed either to summons the other party to a contract to appear or to take evidence from it. The Court of Cassation dismissed that ground of appeal, holding: “... other contracting parties are only required to be summonsed to appear before the court of appeal when assignment of the contract as part of a plan for the sale of the undertaking is envisaged. There is no provision requiring other contracting parties to be summonsed to appear when an order for compulsory liquidation is made. This ground of appeal is therefore unfounded ...” Concurrently, on 27 February 1995 the applicant lodged an application with the President of the Commercial Court for an order for the communication of the insolvency judge's report. On 15 March 1995 the President of the Nanterre Commercial Court dismissed the application, holding: “... the insolvency judge's report is clothed in the secrecy of the deliberations and cannot be communicated to anyone.” | This case concerned the role of the insolvency judge, first in judicial reorganisation proceedings and later in liquidation proceedings concerning companies owned by the applicant. The applicant alleged in particular a lack of impartiality by the insolvency judge in the commercial Court on the ground that insolvency judges not only intervened during the period when a company was under observation during the judicial reorganisation phase but subsequently presided over the court dealing with liquidation proceedings. |
843 | Interception of communications, phone tapping and secret surveillance | I. THE CIRCUMSTANCES OF THE CASE A. Background facts 5. On 23 December 1990, the applicant was arrested for drunkenness and taken to Hammersmith Police Station. He was held overnight in a cell shared by another detainee, Patrick Quinn. The next day, Mr Quinn was found dead with severe injuries. The applicant was charged with his murder. The applicant alleged that the police had framed him for the murder in order to cover up their own wrongdoing. In September 1991, the applicant was found guilty of the murder of Mr Quinn and was sentenced to life imprisonment. In February 1993, his conviction was overturned on appeal. At a first retrial, one of the police officers, a key prosecution witness, failed to appear. He was subsequently declared mentally unstable and was withdrawn from the proceedings. Following a second retrial, the applicant was convicted in 1994 of manslaughter and sentenced to nine years'imprisonment. The case was controversial in the United Kingdom on account of missing and conflicting police evidence which led some – including a number of Members of Parliament – to question the safety of the applicant's conviction. 6. In 1996, the applicant was released from prison. Following his release, he became active in campaigning against miscarriages of justice generally. He subsequently started a removal business called Small Moves, undertaking small moves and van hire in London. Although his business did well at the beginning, he subsequently began to experience interference with his business telephone calls. He alleged that local calls to his telephone were not being put through to him and that he was receiving a number of time-wasting hoax calls. The applicant suspected that this was because his mail, telephone and email communications were being intercepted. As a result of the interference, the applicant's business began to suffer. 7. The applicant believed that the interception of his communications was directly linked to his high profile case and his subsequent involvement in campaigning against miscarriages of justice. He alleged that the police and security services were continually and unlawfully renewing an interception warrant – originally authorised for the criminal proceedings against him – in order to intimidate him and undermine his business activities. B. Domestic proceedings 8. On 10 July 2000 the applicant made subject access requests to MI5 and GCHQ (the United Kingdom's intelligence agencies responsible for national security) under the Data Protection Act 1998 (“DPA” – see paragraphs 21 to 22 below ). The object of the requests was to discover whether information about him was being processed by the agencies and to obtain access to the content of the information. Both requests were refused on the basis that the information requested was exempt from the disclosure requirements of the 1998 Act on the grounds of national security under certificates issued by the Secretary of State on 22 July 2000 (MI5) and 30 July 2000 (GCHQ). 9. On 6 July 2001 the applicant lodged two complaints with the Investigatory Powers Tribunal (“IPT”). First, the applicant complained under sections 65(2)(b) and 65(4) of the Regulation of Investigatory Powers Act 2000 (“RIPA” – see paragraphs 25 to 80 below ) that his communications were being intercepted in “challengeable circumstances”, within the meaning of section 65(7) RIPA (i.e. under an interception warrant or in circumstances in which there ought to have been an interception warrant or where consideration ought to have been given to obtaining an interception warrant). Second, the applicant complained under sections 6(1) and 7(1) of the Human Rights Act 1998 ( “ HRA ” ) and section 65(2)(a) RIPA that there was an unlawful interference with his rights under Article 8 of the Convention. 10. The applicant's Grounds of Claim and Complaint outlined the grounds for bringing the proceedings as follows: “ 4 (a) That the authorities'conduct was, and is, incompatible with his rights under Article 8 of the Convention and a violation of equivalent rights of his at common law. Such conduct is unlawful as a result of HRA s. 6(1) and forms the basis for a complaint under RIPA s. 65. (b) To the extent any such conduct purports to have the authority of a warrant issued or renewed under RIPA Part I or the corresponding predecessor provisions of the Interception of Communications Act 1985 (“IOCA”), the issue and renewal of that warrant, as well as the conduct itself, has at all times lacked the necessary justification, whether under the express provisions of RIPA Part I (or IOCA), Article 8(2) of the Convention, or the general law. (c) Moreover the authorities'conduct was and is unlawful because in breach of the requirements of the Data Protection Act 1998 (“DPA”). Conduct in breach of those requirements takes place in challengeable circumstances under RIPA s. 65(4) and (7) and is also incompatible with the Complainant's rights under Article 8 of the Convention. 5. In addition, the Complainant relies in these proceedings on his right to a fair hearing under Article 6(1) of the Convention. In light of that right, the Complainant makes certain submissions about the way in which these proceedings ought to be conducted ... ” 11. The applicant requested specific directions regarding the conduct of the proceedings in order to ensure the protection of his Convention rights under Article 6 § 1. In particular, he requested that his arguments and evidence be presented at an oral hearing; that all hearings be conducted in public; that there be mutual disclosure and inspection between the parties of all witness statements and evidence upon which parties sought to rely and exchange of skeleton arguments in relation to planned legal submissions; that evidence of each party be heard in the presence of the other party or their legal representatives, with oral evidence being open to cross-examination by the other party; that any opinion received from a Commissioner be disclosed to the parties, who would have the opportunity to make oral representations in light of it; that each party be able to apply for a derogation from any of the above in relation to a particular piece of evidence; and that, following its final determination, the IPT state its findings and give reasons for its conclusions on each relevant issue. He argued that to the extent that the IPT's rules of procedure (see paragraphs 84 to 87 below) prevented the directions sought, they were incompatible with his right to a fair hearing. 12. The Grounds of Claim and Complaint referred to the applicant's belief that his communications were being intercepted and that any warrant in place was being continually renewed. 13. Paragraph 13 of the Grounds of Claim and Complaint noted: “So far as the proceedings are brought in reliance on HRA s. 7(1)(a) or (b), the Complainant submits that: (a) The interception, and retention or other processing of intercept product, by any of the Respondents amounts to an interference with the Complainant's right to respect for private life and correspondence protected by Article 8(1) of the Convention; (b) The interception and processing have at no time been in accordance with the law as required by Article 8(2); (c) The interception and its purported authorisation (if any), and processing, have at no time been justified as necessary in a democratic society as required by Article 8(2).” 14. Paragraph 14 of the Grounds of Claim and Complaint expanded on the applicant's submissions: “In particular, the Complainant submits that: (a) the proper inference from the circumstances described by the Complainant, amplified by the refusal of the [authorities] to deny the activities alleged, is that it is established on the balance of probabilities that the interception and processing took place. At minimum there is a reasonable likelihood that interception and processing ... has taken place and continues to take place ( Hewitt and Harman v. UK, 12175/86, EComHR Report 9.5.89, paras. 26-32). (b) The interception is not in accordance with the law so far as involving a breach of any requirement of the DPA (including the Data Protection Principles) ... (c) The complainant poses no risk to national security nor in his case could any other ground for authorising interception of his communications reasonably be considered to exist. It cannot be said that interception of his communications has at any material time been a necessary or proportionate interference ... with his rights under Article 8(1).” 15. As to remedies, the Grounds of Claim and Complaint noted the following : “17. If the Tribunal finds that the Complainant succeeds on the claim or complaint, it is asked to make ... : (a) a final order prohibiting each Respondent from intercepting any communication by the Complainant ... or retaining or otherwise processing the product of any such interception, except on the grounds, and subject to the procedure, provided for by RIPA Part I; (b) an order ... quashing or cancelling any warrant or authorisation relating to any such interception; (c) an order requiring the destruction of any product of such interception ... (d) an award of compensation ... and/or damages ... for the loss and damage sustained by the Complainant in consequence of the matters complained of (including economic loss resulting from interference with his business communications ) .” 16. On 23 January 2003, the IPT, presided over by Lord Justice Mummery, issued a joint Ruling on Preliminary Issues of Law in the applicant's case together with a case involving a complaint by British-Irish Rights Watch and others in which a similar challenge to the IPT's Rules was made (see paragraphs 84 to 87 below). 17. On 9 December 2004, the IPT, again presided over by Lord Justice Mummery, issued a second ruling on preliminary issues of law in the applicant's case. In the introduction to its ruling, the IPT summarised the case before it as follows: “ 1. On 6 July 2001 the Complainant made (a) a complaint to the Tribunal under the Regulation of Investigatory Powers Act ... and (b) a claim under the Human Rights Act 1998 ... in respect of alleged ongoing interception by one or more of the respondent agencies (the Security Service, GCHQ and the Commissioner of Police for the Metropolis) over a period dating back to June 1996 ... 2. The Complainant also alleges harassment, intrusive surveillance, interference with property, removal of documents, interference with a web site and e-mails and interception of privileged communications by the respondent agencies. 3. The Complainant seeks a final order prohibiting the agencies from intercepting any communication by him in the course of its transmission by means of a telecommunications system or retaining or otherwise processing the product of any such interception except on the grounds and subject to the procedure provided by RIPA Part I. 4. He also seeks an order requiring the destruction of any product of such interception held by each respondent, whether or not obtained pursuant to any warrant or authorisation; and an award of compensation under s 67(7) RIPA and/or damages sustained by the Complainant in consequence of the matters complained of. ” 18. The ruling dealt with a number of matters relating to the extent of its jurisdiction in respect of the applicant's complaints relating to conduct prior to the entry into force of RIPA. 19. Following its ruling of 9 December 2004, the IPT proceeded to examine the applicant's specific complaints in private. 20. On 17 January 2005, the IPT notified the applicant that no determination had been made in his favour in respect of his complaints. This meant either that there had been no interception or that any interception which took place was lawful. | Convicted of manslaughter – in a case which was controversial on account of missing and conflicting evidence – and released from prison in 1996, the applicant subsequently became active in campaigning against miscarriages of justice. Suspecting police interception of his communications after he had started a small business, he complained to the Investigatory Powers Tribunal (IPT). He was eventually informed in 2005 that no determination had been made in his favour in respect of his complaints. This meant either that his communications had not been intercepted or that the IPT considered any interception to be lawful. No further information was provided by the IPT. The applicant complained about the alleged interception of his communications. |
12 | Children’s testimony | 2. The applicant was born in 2007. She was represented by Mr H. Kuningas, a lawyer practising in T. 3. The Government were represented by their Agent, Mrs M. Kuurberg, Agent of the Government to the European Court of Human Rights. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant was born in August 2007. In September 2010 her parents separated. The applicant continued to live with her mother and met with her father in accordance with an agreement between the parents. As from February 2012 meetings with the child took place pursuant to arrangements fixed by a court (see civil proceedings below). 6. According to statements given by the applicant’s mother in the subsequent criminal proceedings, she had become suspicious of the father’s behaviour already in 2009 when her daughter had complained of pain in her bottom. In 2011 she had started noticing changes in her daughter’s behaviour when she returned from visits with her father. When questioned, her daughter had revealed that she had been sleeping naked with her father, that she had massaged him all over the body, including his genitals, and that he had inserted his fingers in her anus and vagina, causing pain. Criminal proceedings 7. On 19 March 2012 the applicant, who at the time was about four and a half years old, made an oral report of a crime to the police. Her statements were video-recorded and transcribed by a female senior investigator from the child protection service in the presence of a psychologist and the applicant’s mother. During the interview, the applicant recounted how she and her father had massaged each other, including her stroking his sexual organ, and demonstrated her father’s activities on a doll. 8. On the basis of that report, criminal proceedings were instituted against the applicant’s father. Later the same day, 19 March 2012, the applicant was questioned as a victim of crime by an investigator in the presence of the same psychologist and the applicant’s mother. The interview was also video-recorded. 9. On 3 April 2012 the investigator commissioned a comprehensive psychiatric and psychological assessment of the applicant, which was carried out from 9 to 26 April 2012. According to the expert report of 3 May 2012, the applicant was suffering from separation anxiety, but her psychological development was appropriate to her age and she had no increased tendency to fantasise. However, she was too young to attend court hearings and give statements there. 10. On 16 May 2012 a further video-recorded interview of the applicant took place in the presence of her mother. 11. On 20 June 2012 the applicant’s father was questioned as the suspect. 12. On 29 June 2012 an expert conducted a physical examination of the applicant and found no bodily injuries on her person, including in the rectal or genital area. 13. On 27 August 2012 the video-recordings of the applicant’s interview were presented to the suspect in the presence of his counsel. It was explained to them that they could submit any questions to the applicant in writing. 14. On 3 September 2012 a second interview with the suspect took place. 15. On 18 February 2013, following a psychiatric assessment of the suspect, the experts found no reason to establish any sexual disorder and concluded that he was mentally healthy. 16. On 27 June 2013 the prosecutor drew up a bill of indictment and submitted it to the County Court. According to the charges, in the period from 2009 to March 2012 the applicant’s father had repeatedly engaged in sexual intercourse with his daughter, taking advantage of the child’s inability to comprehend, by inserting his finger into the child’s vagina and anus. In addition, by ordering his daughter to stroke his sexual organ, he had engaged in a sexual act other than intercourse with a child. Those acts were qualified under the provisions of Articles 141 (rape) and 142 (involvement of a minor in satisfaction of sexual desire) of the Criminal Code, as applicable at the time. 17. The County Court held a preliminary hearing in October 2013. Further in camera hearings took place in February, April and October 2014. The victim’s statements given during the investigation were disclosed and the court heard several witnesses, including those for the defence, as well as the experts who had prepared written reports. 18. The accused pleaded not guilty. He argued, inter alia, that his daughter’s testimony was unreliable and contradictory. Her answers during the police interviews had been influenced by the presence of her mother, who had intervened and enticed the child with different promises. The interviews lasting over an hour had been too long for a small child, resulting in tiredness and a desire to please her interrogators, who had used leading questions. The criminal proceedings were a tool used by her mother to limit his access to the child. 19. By a judgment of 4 November 2014, the County Court convicted the applicant’s father as charged and sentenced him to imprisonment for a term of six years. It found that the applicant’s testimony had been confirmed by the statements of her mother, witness statements and expert opinions. Having reviewed the video-recordings of the applicant’s questioning, the court found no undue influence or pressure on the part of the applicant’s mother or the investigator. It considered that the applicant had recounted actual events and found that there was no indication that she had been manipulated or that she was prone to fantasise. The fact that no injuries had been found on her body did not exonerate the accused, as her physical examination had taken place long after the events, and the touching of the accused’s sexual organs would not have left any traces. Nor was it important that the accused had not been diagnosed with any sexual disorder. 20. On 12 December 2014 the accused lodged an appeal against the judgment of the County Court. He submitted, inter alia, that his conviction was essentially based on the unreliable testimony of a four and a half year-old child, and reiterated the arguments he had made before the first-instance court concerning the conducting of interviews (see paragraph 18 above). 21. On 18 March 2015 the Court of Appeal, composed of three judges, dismissed the appeal and upheld the judgment of the County Court. While it accepted that the credibility of the applicant’s testimony was central to the case, upon reviewing the relevant video-recordings it found no indication of any undue influence on the child victim. It pointed out that the use of leading questions was authorised by the Code of Criminal Procedure in a situation where the age of a witness made it difficult for him or her to understand questions that were not leading. It also found that the presence of the applicant’s mother during the interviews had been in compliance with the criminal procedure. It referred to Article 20 of EU Directive 2011/92/EU, which required a Member State to ensure effective protection of the rights of children in criminal proceedings, including the possibility for a child victim to be accompanied by his or her representative during the provision of testimony. 22. One judge of the Court of Appeal dissented, finding issues with both the reliability of the victim’s testimony and the way it had been taken. In particular, he considered that the testimony of the child victim had been obtained in breach of two essential requirements of criminal procedure. First, the child had not been informed of her obligation to tell the truth, so that she could understand the consequences of her testimony for her father. Secondly, the child had not been advised of her right not to give evidence against her next of kin. Those two requirements were clearly set out in law and applied also to minors, who should be informed thereof in a manner appropriate to their age. In practice, this had been done in other criminal cases. 23. On 17 April 2015 the accused appealed, emphasising the inconsistency and unreliability of the evidence and arguing that there had been several violations of criminal procedure, including those highlighted by the dissenting judge of the Court of Appeal. 24. On 23 October 2015 the Supreme Court quashed the judgments of the County Court and the Court of Appeal and acquitted the applicant’s father. It held that as the accused’s conviction was based to a decisive extent on the testimony of the child victim, it was important to follow rigorously the rules concerning the victim’s questioning. The lower courts, however, had relied on the statements given by the victim in the pre-trial proceedings, despite the fact that she had not been made aware of the obligation to speak the truth (Article 66 § 3 of the Code of Criminal Procedure) and had not been advised that she could refuse to give testimony against her father (Article 71 § 1 (1) of the same Code). It stressed that while the age of a witness should be taken into consideration when questioning him or her, the obligation to explain the need to tell the truth could not be disregarded, as this affected the weight of the credibility of the testimony. It further stated that there was no exception for minors from the general rule that one could refuse to give testimony for personal reasons. Should there be a need to depart from the general rules for questioning witnesses because of their age or mental state, it would be for the legislature to determine the situations justifying such departure. Statements obtained from the victim without informing her of her rights and obligations could not be considered lawful evidence, as they had been obtained by materially breaching the procedural law. The failure to provide the information could not be remedied by remitting the case to the lower-instance courts, as the victim had been heard during the pre-trial proceedings and not in court. The exclusion of the decisive evidence inevitably meant that the accused had to be acquitted of the charges against him. 25. The Supreme Court also dealt with other procedural issues, pointing out further deficiencies in the lower-instance courts’ judgments. Firstly, the first-instance court and Court of Appeal had, contrary to the domestic procedural law, treated the statements given by a number of witnesses who had not been direct witnesses to any of the alleged offences as independent evidence, rather than hearsay. Secondly, the Court of Appeal had referred in its reasoning to the explanations given by the applicant during preparation of an expert opinion, despite the fact that those could not be used as evidence. Thirdly, the lower-instance courts had erroneously equated the oral report of a criminal offence as recorded by the police with the report of the victim’s testimony. This could be done only if the victim had been heard at the same time as the drawing up of the offence report and had then been duly informed of his or her rights and obligations. As this had not been done, relying on such a report as evidence amounted to a violation of procedural law. 26. The Supreme Court found no issue with the presence of the applicant’s mother during the interviews. Although that situation was not specifically regulated in domestic law, the right for a child to be accompanied by his or her legal representative derived from Article 20 of EU Directive 2011/92/EU. Furthermore, the use of leading questions was clearly provided for by law. 27. The Supreme Court further noted that although the accused’s counsel had no right to be present during the interviews with the victim, he had had the opportunity, which he had not used, to put questions to the victim at both the pre-trial and court proceedings. 28. Lastly, as regards the issue of credibility of the victim’s testimony, the Supreme Court found that the lower courts had failed to deal with the course of events prior to the reporting of an offence, including the possible effect of time and psychological consultations on the victim’s memory. Consideration should have been given to the terminology used by the victim and to other circumstances capable of indicating that her statements might have been influenced by other people. Civil proceedings 29. On 20 February 2012 the County Court fixed the arrangement for the applicant’s contact with her parents. On 5 April 2012 the arrangement was amended so as to limit the father’s access in view of the criminal proceedings instituted against him on 19 March 2012. 30. On 26 June 2013 the court barred the applicant’s father’s access to her completely. 31. On 20 November 2013 the civil proceedings were suspended pending the outcome of the criminal case against the applicant’s father. Following the Supreme Court decision of 23 October 2015 acquitting the applicant’s father, the civil proceedings were resumed on 9 November 2015. 32. On 4 May 2016 the County Court issued a decision on the care of and access to the applicant, which was upheld by the Court of Appeal. However, the decision was quashed by the Supreme Court and the case was remitted to the Court of Appeal for fresh consideration. 33. On 26 June 2017 the Court of Appeal granted sole custody of the applicant to her mother and barred the father’s access to her completely until she reached the age of majority. It found it established that he had sexually abused the applicant, thereby endangering her physical, mental and spiritual well-being. The finding was based on the testimony of the child heard before the first-instance court, the statements of her mother and witnesses, as well as on an expert opinion concerning the child’s mental development. The Court of Appeal did not agree with the argument of the applicant’s father to the effect that since he had been acquitted in the criminal proceedings, it was not open to the civil courts to rely on the allegations of sexual abuse. The Supreme Court’s judgment related to his criminal liability, whereas the civil courts had to assess whether his behaviour constituted a danger to the child in the context of a custody-and-contact dispute. In carrying out this assessment, the courts had to take into account all the evidence submitted and decide whether an allegation made by a party had been proven. The Court of Appeal found it important to note that the applicant’s father had been acquitted by the Supreme Court on account of a material breach of procedural law, not because of lack of a criminal offence. 34. It appears that no appeal was lodged against the decision of the Court of Appeal. | This case concerned the failure to conduct an effective criminal investigation into the applicant’s allegations of sexual abuse by her father. The applicant was about four and a half years old at the relevant time. Her complaint concerned procedural deficiencies in the criminal proceedings as a whole, including the failure of the investigator to inform her of her procedural rights and duties, and the reaction of the Supreme Court to that failure resulting in the exclusion of her testimony and the acquittal of her father on procedural grounds. |
896 | Private persons | 2. The applicant was born in 1941 and lives in Bratislava. He was represented by Mr M. Kaľavský, a lawyer practising in Bratislava. 3. The Government were represented by their Co-Agent, Ms M. Bálintová, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant wished to become a biological father through surrogacy, a practice that was not regulated by Slovak law. In March 2005, he and his alleged partner published a short advertisement in a nationwide daily newspaper seeking a woman who was willing and able to give birth to ‘their’ child, while offering a financial reward in return. The advertisement did not reveal the applicant’s identity and promised to keep any negotiations confidential. An investigative television reporter, pretending to be a potential surrogate mother, used a hidden camera to secretly record her meetings with the applicant in which arrangements for the surrogate pregnancy were discussed. On 27 June 2005, her report about the applicant’s intention to ‘buy’ a child, which included video recordings of the applicant, was broadcast on Slovak television. According to the applicant, the report contained unfounded assumptions which were intended to cause a sensation, and suggested that he was a member of an organised group selling children abroad. 6. On 29 June 2005, a popular daily newspaper with national coverage published an article entitled “Trade in unborn children”, describing the applicant’s story as depicted by the television report, and displaying, without the applicant’s consent, his pictures taken from that report. With regard to details of the applicant’s private life, the article stated that the applicant had made his sister impersonate his wife and that, having lived for a long time in the United States, the applicant had only recently acquired Slovak citizenship. The article also mentioned the role of doctors who were allegedly ready to help with the assisted reproduction and the falsification of documents. The article ended by stating that although trafficking of unborn children was illegal in Slovakia, the applicant and his fake partner would probably escape justice and would not be punished because there was no legislation which would enable their actions to be prosecuted. The article was also published in the online version of the newspaper, where it was still available in June 2020. 7. The applicant subsequently brought two actions for the protection of his personal integrity on the basis of Articles 11-13 of the Civil Code, one against Slovak television and the other against the publisher of the newspaper. In January 2007, he won the case against Slovak television before the first-instance court and was awarded more than 16,500 euros in damages; that decision was upheld by the appellate court’s judgment of 26 October 2011 (which became final on 3 February 2012). The courts found that Slovak television had violated the applicant’s rights by criminalising him, as well as by broadcasting, in breach of the law, video and audio recordings of him which had been obtained illegally, without enabling him to express his views on the facts presented in the report. 8. The applicant’s action against the newspaper publisher was subsequently dismissed by courts at two levels of jurisdiction, on the grounds that the article aimed to inform readers about questions of public interest, the issue of assisted reproduction being extremely sensitive and somewhat controversial; that the applicant had himself attracted public and media attention by publishing his advertisement, thus excluding the relevant facts from his private sphere; and that the article in question contained only true information which had already been broadcast on public television. The Bratislava Regional Court, acting on appeal, also considered that Article 12 § 3 of the Civil Code allowed the photographs of the applicant to be used for news reporting without his previous consent, and that the applicant’s actions were legally unacceptable and morally reprehensible. 9. The applicant lodged a constitutional complaint in which he argued, inter alia, that the publication of the pictures of him amounted to an abuse by the defendant of its right to freedom of expression. The Constitutional Court quashed the Regional Court’s judgment on 15 January 2014. In the Constitutional Court’s view, the Regional Court had not given an appropriate answer to all of the relevant arguments raised by the applicant and had thereby breached his rights under Article 6 § 1 and Article 8 of the Convention. Namely, it had failed to provide sufficient reasons for its conclusion that the article and the applicant’s pictures qualified as “news reporting by the press” within the meaning of Article 12 § 3 of the Civil Code; to duly assess the requirement of proportionality when analysing whether the pictures identifying the applicant had contributed to a discussion on matters of public interest; and to explain the factual basis supporting what was considered to be a value judgment on the manner in which the applicant had acted, that is a criticism ad personam. 10. The case was thus remitted to the Regional Court and the parties were invited to submit additional comments. 11. By a judgment of 17 July 2014, the Regional Court upheld the dismissal of the applicant’s action by the first-instance court. It considered, firstly, that although the applicant was not a publicly known figure, he had decided to enter the public sphere by publishing his advertisement, and should thus have expected a greater amount of attention from the public, all the more so given that his identity had already been revealed by the television report. Consequently, he could not be treated as an “ordinary citizen” and the level of protection for his private sphere was therefore partially reduced. As to the admissibility of critical value judgments of the applicant’s actions, the court pointed out that Slovak law did not allow surrogacy, and that any contract conflicting with the principle that a child’s mother is the woman who gave birth to that child, would be invalid as being contrary to good morals. Moreover, the commercial aspect of the surrogacy raised serious ethical questions, which was undoubtedly one of the reasons why the applicant’s advertisement had aroused so much interest in the media and among the public; and the issue of surrogacy was a matter of legitimate public interest upon which the press was called to inform the public. In the court’s view, the article in question did not contain any harsh or vulgar expressions, and was not only critical about the manner in which the applicant had tried to obtain a child but also about the actions of other people who were to have been involved in the process of assisted reproduction. There was no doubt that the article and the criticisms contained therein had a factual basis and relied on true and uncontested facts. In view of those considerations, the appellate court concluded that the publication of the article did not amount to an unjustified interference with the applicant’s rights, which were in that case overridden by the defendant’s right to freedom of expression. Concerning the publication of the applicant’s pictures, to which he had not consented, the appellate court referred to the legal exemption provided by Article 12 § 3 of the Civil Code, enabling pictures to be used, without the consent of the person concerned, for the purposes of news reporting. The term “news reporting” covered not only informing about facts of public interest but also assessing those facts in a critical manner. Although the article containing the applicant’s pictures concerned his private life, his private life was touched upon as a secondary issue (to illustrate the applicant’s motives), the core theme – and a matter of public interest ‑ being the manner in which the applicant had tried to obtain a child by offering a financial reward, that is through surrogacy, which was not allowed under Slovak law. The publication of the article with the pictures was also considered topical, given that it had occurred two days after the television broadcast and thus covered the subject at a time when the public were hearing information about the applicant’s actions. The pictures served the purpose of confirming the trustworthiness of the information published, all the more so because the subject of the article was unusual. The fact that it was published in the so-called tabloid press did not as such exclude it from the news reporting exemption, since the decisive factor was the manner in which the topic had been approached; in the present case, neither the content of the article nor the pictures were intended to create scandal about or ridicule the applicant. Consequently, the publication of the applicant’s pictures was covered by Article 12 § 3 of the Civil Code. Lastly, the appellate court observed that the author of the article had assessed the trafficking of unborn children in Slovakia as being illegal, while quoting the statement of a third party that the trafficking of unborn children could not be prosecuted because of the absence of relevant legislation. This amounted to a contradiction since an action which was not regulated by the criminal law could neither be contrary to that law nor subject to punishment; nevertheless, a surrogacy contract would be invalid from the perspective of family law. According to the court, it was necessary to take into account the fact that the article had been written by a journalist and published in a newspaper designed for a wide public, which required the acceptance of even simplified or distorted allegations; in the present case, the above-mentioned contradiction amounted to a lack of precision which did not have any impact on the applicant’s personality rights, given that the substance of the information relied upon in the article was true. 12. The applicant challenged the Regional Court’s judgment by a constitutional complaint, arguing that its reasoning was still not compliant with his rights guaranteed under Article 6 § 1 and Article 8 of the Convention. As to the application of Article 12 § 3 of the Civil Code, he argued that the newspaper article had not been topical since the events covered had dated to more than two months back (when the pictures had also been taken), and contained a subjective assessment; thus, it could not be considered as “news reporting” and his consent to the publication of the pictures should have been sought. Moreover, the appellate court had failed to examine the manner and the extent to which the pictures – which formed three quarters of the article – had been used, which suggested that the main aim had not been to report about surrogacy but to reveal his identity; the use of the pictures was contrary to his legitimate interests. In the applicant’s view, there was no legitimate interest requiring the publication of his non ‑ pixelated pictures, which were not capable of contributing to a debate on a matter of public interest. The applicant emphasised in this context that the article had been based on a television report which had used illegally obtained material and which had been broadcast in breach of the law, as had been held in the proceedings against Slovak television, and that the publisher had not acted in good faith but only with the aim of causing a sensation. While the publisher could have had a legitimate interest in covering the public-interest issue of surrogacy, it had had the obligation to do so in an objective and sober manner, without focusing on one particular case and without revealing his identity and criminalising him. Furthermore, the article contained untrue and inadmissible critical value judgments, namely that he was considered to have trafficked unborn children even though no child had ever existed in this case. 13. By decision no. II. ÚS 424/2015 of 1 July 2015 (served on 14 September 2015), the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded. It considered that the Regional Court, having sufficiently reasoned its judgment and given a clear and comprehensive response to all of the questions raised, had complied with the requirements stemming from the rights to judicial protection and to a fair trial, and from the Constitutional Court’s previous judgment. It further observed that the right to respect for private life was not absolute and that the criteria to be taken into account when balancing that right and the journalist’s freedom of expression were the status of the person whose personality rights had been interfered with; the content and form of the article; the status of the author of the article; and the article’s purpose, aim and motive. In this connection, it was considered essential that the applicant had himself, through his advertisement, drawn attention to his intention to have recourse to surrogacy even though that practice was not in accordance with Slovak law. In so far as the article revealed circumstances of the applicant’s private life, even if it had done so in expressive and critical terms, it had not done so without purpose. The article had contributed to the public debate which had followed the television report, and the publication of the applicant’s pictures was allowed by the news reporting exemption. The author was a journalist, who was obliged to inform the public about matters of public interest, and it had not been proved that the defendant had acted in bad faith or tried to defame the applicant. Thus, according to the Constitutional Court, the Regional Court’s assessment of the proportionality of the interference had not overstepped the constitutionally acceptable limits. | After publishing an advertisement in a nationwide daily newspaper aimed at finding a surrogate mother, the applicant found himself the subject of a television report by an investigative reporter who had recorded her meetings with him covertly whilst pretending to be a potential surrogate mother. This was followed by the publication, in print and online, of an article, in a popular daily newspaper with national coverage, which described the applicant’s story as depicted by the television report, contained information on his private matters as well as photographs of him from the report taken without his consent. Although, he successfully brought an action for the protection of his personal integrity against television, the one he brought against the newspaper’s publisher was dismissed. |
40 | Applications lodged by the parent whose child had been abducted by the other parent | I. THE CIRCUMSTANCES OF THE CASE 9. On 7 May 1980 the applicant married D.Z., a Romanian national. The couple had two children, Maud and Adèle, who were born in 1981 and 1984 respectively. 10. In a judgment of 20 December 1989 the Bar-le-Duc tribunal de grande instance granted the spouses a divorce and approved the agreement they had concluded to deal with the consequences of the divorce, whereby parental responsibility was given to the father and the applicant was granted access and staying access. 11. During 1990 D.Z. moved to the United States with his daughters. 12. On 3 September 1990 the applicant lodged a complaint against him for failure to hand over the children to her. She asserted that at the beginning of September D.Z. had breached her right of access as, without informing her, he had kept them in the United States beyond the midway point of the school holidays. 13. On 4 September 1990 the applicant brought urgent proceedings against D.Z. in the Metz tribunal de grande instance, applying for parental responsibility and a residence order in her favour, together with an order prohibiting D.Z. from removing the children from France without her consent. 14. The matrimonial causes judge of the Metz tribunal de grande instance dismissed her application in an interim order dated 11 September 1990. 15. The applicant appealed against that order to the Metz Court of Appeal, which set it aside in a judgment of 28 May 1991. The Court of Appeal gave parental responsibility to both parents, ordered that the children should live with their mother and granted D.Z. access and staying access. 16. D.Z. did not comply with the judgment and did not hand the children over to their mother. 17. On an application by D.Z., who had been living in Texas for over a year, the Harris County Court of the State of Texas set aside the judgment of the Metz Court of Appeal in a judgment of 30 September 1991 and awarded custody of the children to the father. The applicant, who was neither present nor represented before that court, was granted only access. After consulting a psychologist, who found that the children had no distinct memory of their life with their mother before the divorce and were delighted to live with their father and stepmother, the court held that the children were happy and well integrated in Texas, where they were receiving special protection and attention from the authorities. 18. In December 1991 D.Z. moved to California with his two children. 19. In a decision of 24 February 1992 the investigating judge of the Metz tribunal de grande instance committed D.Z. for trial on a charge of failure to hand over a child to the person entitled to its custody, an offence under Article 357 of the French Criminal Code. The applicant joined the proceedings as a civil party. 20. On 18 September 1992 the Metz tribunal de grande instance, having tried D.Z. in absentia, convicted him and sentenced him to a year's imprisonment for failure to hand over the children and issued a warrant for his arrest. 21. The warrant could not be executed as D.Z. was not on French territory. 22. On an unknown date D.Z. lodged an appeal on points of law with the Court of Cassation against the Metz Court of Appeal's judgment of 28 May 1991. 23. In a judgment of 25 November 1992 the Court of Cassation pointed out that the jurisdiction of the tribunals of fact to assess the weight and effect of the evidence was exclusive, dismissed D.Z.'s appeal and sentenced him to pay a civil fine of 10,000 French francs. 24. The applicant, who had started proceedings in the United States for the recognition and execution of the judgment of 28 May 1991, obtained five judgments between 1993 and 1994 from California courts ordering D.Z. to return the children to her. Thus on 10 August 1993, for instance, the Superior Court of the State of California granted authority to execute the judgment of the Metz Court of Appeal and ordered D.Z. to return the children to their mother. 25. In a report of 17 August 1993 an expert in family psychology registered with the California courts, L.S., stated after interviewing the girls that they did not want to go back to live with their mother and were happy with their father and his new wife. While Maud did not seem to have any particular feelings towards her mother, Adèle told L.S. that her mother was “ugly and nasty” and did not love them but only wanted to show them off to others and buy them toys. 26. In a judgment of 1 February 1994 the California Court of Appeals held that the Harris County Court in Texas had no jurisdiction to set aside the Metz Court of Appeal's judgment of 28 May 1991. In a judgment of 29 April 1994 the Superior Court of the State of California once again affirmed the judgment of the Metz Court of Appeal, holding that the children should reside with the applicant and that their removal from the State of California without the court's express permission would be illegal. 27. D.Z. did not comply with the California judgments. In March 1994 he left the United States and went to Romania with his children. 28. In July 1994, relying on the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (“the Hague Convention”), the applicant applied to the French Ministry of Justice – France's Central Authority for the purposes of that instrument – for the return of her daughters. 29. In November 1994 the United States' Central Authority requested the Romanian Ministry of Justice (Romania's Central Authority) to return the children pursuant to Articles 3 and 5 of the Hague Convention. 30. In December 1994 France's Central Authority requested Romania's Central Authority to return the children pursuant to Articles 3 and 5 of the Hague Convention. 31. Relying on Article 2 of the Hague Convention, the applicant made an urgent application to the Bucharest Court of First Instance for an order requiring D.Z. to comply with the court decisions in which a residence order had been made in her favour and the children's return ordered. 32. The court delivered its judgment on 14 December 1994. It noted, firstly, that the Metz Court of Appeal, in its judgment of 28 May 1991, had ordered that the children should live with their mother and that the California courts had ordered the return of the children. It went on to note that D.Z. had abducted the children in breach of those judgments and that he had been sentenced to a year's imprisonment for failure to hand over a child. It held that the applicant's application satisfied the requirement of urgency, as her right might be irreparably affected in the event of delay. Moreover, the measure sought was a precautionary one, which did not prejudge the merits of the case but was designed to protect the applicant's right, which any delay would have jeopardised. Lastly, a prima facie case, which was a requirement for urgent proceedings to be admissible, had clearly been made out. As to the merits, the court held that the provisions of the Hague Convention were applicable to the case, as that convention had been incorporated into Romanian law by Law no. 100/1992 providing for Romania's accession to that instrument, and in particular, Article 14 of this convention, which enabled the court to rely on foreign court judgments directly without any need for a registration procedure. In a judgment enforceable without notice the court therefore ordered that the children should be returned to the applicant. 33. That judgment could not be executed as D.Z. had hidden the children. 34. On an unknown date in December 1994 D.Z. removed the children from school and took them to an unknown location. 35. D.Z. appealed against the judgment of 14 December 1994. On 9 June 1995 the Bucharest County Court adjourned the case to 30 June 1995 and ordered that the children be heard. 36. On 30 June 1995, in the absence of the representative of the Ministry of Justice, which was intervening, and of that of the District Council of the second district of Bucharest, which was responsible for monitoring and ensuring compliance with the obligations of divorced parents, the court adjourned the case. It also granted an application by D.Z. for a stay of execution of the judgment pending the outcome of the appeal. No reasons were given for the latter decision. 37. On 23 August 1995 the Ministry of Justice asked Bucharest City Council to carry out a social inquiry at D.Z.'s home. 38. On an unspecified date the mayor of Bucharest informed the Ministry of Justice that a social inquiry had been carried out by the District Council of the second district of Bucharest in September 1995. The mayor of that district submitted the findings of the inquiry, signed by him, the town clerk and an inspector. They read as follows: “The children Maud and Adèle ... live with their father and his wife in an eight-room house, and each girl has a room of her own. Their father looks after them very well, as regards both their physical and their mental welfare, providing the best conditions for their upbringing. It is evident from conversations with the girls in Romanian – they have a command of the language – that they are intelligent, sociable and at ease and that they lead a normal life, read, write and work hard at school. There is an atmosphere of harmony and friendship and plenty of affection between the girls, their father and his wife. The girls do not want to go and live with their mother in France, whom they remember as a cold and indifferent person. They say that they have always found their father understanding, warm and affectionate. They are very impressed by Romania and the Romanians, among whom they have made many friends. During the holidays they went to the countryside and they felt wonderfully well there. When asked to say whether or not they wanted to see their mother or go and live with her, they replied categorically 'no' and insisted that any decision concerning them should take their wishes into account. In conclusion, we consider that in Romania the children Maud and Adèle have the best conditions for their upbringing.” 39. In a decision of 1 September 1995 the Bucharest County Court dismissed D.Z.'s appeal against the judgment of 14 December 1994. 40. D.Z. appealed to the Bucharest Court of Appeal, which in a final judgment of 14 March 1996 dismissed the appeal for lack of grounds. A. Objection to execution 41. On an unknown date D.Z. lodged an objection to the execution ( contestaţie la executare ) of the judgment of 14 December 1994. After having taken evidence from the children, who reiterated their wish to stay with their father, the Bucharest Court of First Instance dismissed the objection on 7 April 1995. 42. On an appeal by D.Z. against that decision, the Bucharest County Court affirmed it on 9 February 1996. B. Application to the Bucharest Court of First Instance for transfer of parental responsibility 43. On 27 October 1995 D.Z. lodged an application with the Bucharest Court of First Instance to be given exclusive parental responsibility. He argued that since 1994 he had been living in Bucharest in a spacious eight-room house which afforded the children exceptional conditions. They did not want to go to live with their mother, who belonged to a sect. The court, informed by D.Z. that the applicant's address for service was the address of Ştefan Constantin, caused the date of the hearing to be served only on him. It is clear from documents available to the Court that neither at that stage of the proceedings nor later was the applicant informed that she had been summoned to appear before the Bucharest Court of First Instance. 44. On 26 January 1996, at the request of the Bucharest Court of First Instance, the District Council of the second district of Bucharest carried out a social inquiry. Following that inquiry, the mayor of Bucharest informed the court that the two girls were well developed, both physically and psychologically, that they led normal lives, had friends at school and in the neighbourhood and were very attached to their father and his wife, who both looked after them very well and with whom they wished to live. 45. After holding two hearings in the absence of the applicant on 8 and 29 January 1996 and interviewing the children in private on 16 January 1996, the court delivered its judgment on 5 February 1996, likewise in the applicant's absence. Emphasising that the children's interests were paramount and basing its judgment on documents drawn up by the children's teachers attesting to their good performance at school, on a letter from the Ministry of Religious Affairs to the effect that the sect to which the applicant belonged was not recognised in Romania, and on the social inquiry carried out by the Bucharest District Council, the court allowed D.Z.'s application, holding that he was providing the best living conditions and upbringing for the children, whom he had, moreover, brought up on his own since the divorce. 46. On 16 October 1996 the Bucharest County Court set aside that judgment on appeal because of an irregularity in the service of notice on the applicant, and remitted the case to the Court of First Instance. It noted that the applicant lived in France, that she had given Ştefan Constantin special authority to represent her in another set of legal proceedings and that consequently, in the absence of special authority in the case before the court, the summons should have been served at her permanent address in France. 47. D.Z. challenged that decision on the ground that the applicant had given Ştefan Constantin general authority to act for her and that consequently the service of the court documents at his address was valid. 48. In a judgment of 9 April 1997, delivered in the absence of either the applicant or any representative of hers, the Bucharest Court of Appeal allowed the appeal on the ground that the applicant had given Ştefan Constantin general authority to act on her behalf. It set aside the decision of 16 October 1996 and remitted the case to the County Court for reconsideration of the appeal. 49. The case was set down for hearing in the County Court on 23 January 1998. According to the record of the hearing made on that date, the hearing was attended by D.Z., his lawyer and the assistant of Florea Constantin, the lawyer who, according to the court, was supposed to be acting on behalf of the applicant. The Court cannot determine from the documents submitted to it which of Florea and Ştefan Constantin was regarded by the County Court as having been appointed by the applicant. The assistant pointed out that Florea Constantin was absent and sought an adjournment of the hearing. That application was refused after the court had heard the submissions of counsel for D.Z. It gave its decision on 30 January 1998, in the absence of the applicant or a representative. Without mentioning the issue of the applicant's representation, the court dismissed the appeal and thus upheld the judgment of 5 February 1996, noting that the children wished to stay with their father, who was affording them the best living conditions. 50. It appears that an appeal against the decision of 30 January 1998 was lodged on behalf of the applicant. It cannot be determined from the documents submitted to the Court whether the applicant herself entered the appeal. However that may have been, the Bucharest Court of Appeal dismissed the appeal for lack of grounds on 28 May 1998. As was apparent from that decision, which the Government did not file with the Registry until 13 September 1999, only D.Z. attended the hearing on 28 May 1998. C. Application to the Metz tribunal de grande instance for transfer of parental responsibility 51. In an application dated 5 January 1995 D.Z. applied to the family judge of the Metz tribunal de grande instance for an order transferring the children's residence to his address and granting him exclusive exercise of parental responsibility. 52. After many adjournments the tribunal de grande instance delivered a judgment on 22 February 1996. It held firstly that it was unnecessary to take account of the judgment of the Bucharest Court of First Instance of 5 February 1996 because that court had no jurisdiction to deal with the merits of the custody of the children, since the Romanian courts could only deal with an application for the return of the children under the Hague Convention. The tribunal de grande instance then declined to take evidence from the children. It found that since 1991 D.Z. had prevented them from seeing their mother and that he had brought them up to feel hatred for her. In letters of 1 and 3 August 1994, in which they spoke of their mother, the girls had used terms such as “idiot” and “my ex-mother” and had hoped that “her house or her flat [would catch] fire and that she [would be] in it when it happen[ ed ]”, terms which the tribunal de grande instance found particularly shocking coming from children of 10 and 14. The tribunal de grande instance concluded that the intolerance, intransigence and hatred found in those letters adequately demonstrated that the upbringing the children had received and the surroundings in which they lived had deprived them of all judgment. 53. The application for transfer of residence was dismissed by the tribunal de grande instance in the following terms: “The Family Judge must rule in the interests of the children when determining their place of residence. The Metz Court of Appeal held in a judgment of 28 May 1991 that it was in the children's interests to live with their mother, in France, in their native Lorraine, both their parents having opted for French nationality. Since that date the mother has had no further contact with her children because of the father's actions. Mrs Ignaccolo filed with the Court the various records of proceedings drawn up in Romania when attempts were made to obtain execution of the decision to return the children, letters from the Romanian Ministry of Justice to the Office for International Judicial Mutual Assistance, from which it appears that Mr Zenide is hiding the children, has acquired a dog which he has trained to attack anyone who approaches the children, and removed the children from school in December 1994 to avoid their whereabouts being discovered. He maintained that his behaviour was justified because Mrs Ignaccolo belonged to a sect and had not looked after the children when they cohabited. However, he did not in any way substantiate his complaints but did no more than make allegations or produce testimony from persons living in the United States or Romania who did not personally know the children's mother. The educative abilities of a father who totally denies the image of the mother, who brings the children up to hate their mother and does not even allow them to form their own opinion by affording them the opportunity to meet her and who has not hesitated, in order to evade enforcement of court decisions, to completely uproot the children for a second time in order to settle in a country whose language they are not familiar with are seriously in doubt. The children's interests in such a situation are intangible and indefinable, regard being had, firstly, to the pressure and conditioning they undergo with their father and, secondly, to the fact that for five years they have been away from their mother, whom they no longer know. The children's wish to stay and live with their father, as expressed both in their letters and when they were interviewed by the Romanian court, cannot on its own determine their interests since, if it did, that would amount to laying upon children of 10 and 14 the responsibility of deciding where they should live. Mr Zenide cannot secure ratification of a factual situation that has arisen from the use of force by merely relying on the passing of time. That being so, his application must quite simply be dismissed ...” D. Attempts to enforce the decision of 14 December 1994 54. Since 1994 the applicant has gone to Romania eight times in the hope of meeting her children. 55. Several attempts were made to execute the decision of 14 December 1994 but without success. 56. On 22 December 1994 a bailiff went to D.Z.'s home, accompanied by the applicant, her lawyer, a locksmith and two policemen. Only D.Z.'s wife O.Z. and a guard dog were at the house. O.Z., a French national, indicated that she would only allow the bailiff to inspect the house if a representative from the French embassy was present. The applicant and her lawyer therefore went to the French embassy, where the French consul, T., and an interpreter agreed to accompany them to D.Z.'s home. 57. During the applicant's absence, but while the policemen and the bailiff were still on the spot, D.Z. and an uncle of his, S.G., entered the house. When the applicant returned, accompanied by T. and the interpreter, O.Z. allowed those present, with the exception of the applicant, to search the premises. As the dog was very fierce, the search was carried out hastily and the girls were not found. D.Z. remained out of sight during the search. 58. On 23 December 1994 the applicant wrote to the Romanian Minister of Justice to complain of the course of events on 22 December. She requested the Minister to lodge a criminal complaint against O.Z. for failure to comply with a court decision. Asserting that she had no news of her daughters, she also asked him to institute criminal proceedings against D.Z., O.Z. and S.G. for ill-treatment of minors, false imprisonment and, if applicable, homicide. 59. On 27 December 1994 a bailiff, the applicant, her lawyer and two police officers again went to D.Z.'s home. Finding no one there, they spoke to a neighbour, who told them that D.Z. had left with the children on 22 December 1994. The group then went to the home of G.A., an uncle of D.Z.'s, with whom D.Z. and the children sometimes lived. There they found G.A. and the same guard dog. G.A. told them that he had not seen either D.Z. or the children since 20 December 1994. As to the dog, he told the bailiff that D.Z. had bought it to protect his daughters. 60. In a letter of 7 February 1995 the French Ministry of Justice informed the applicant that the Romanian Ministry of Justice had lodged a criminal complaint against D.Z. with the appropriate public prosecutor's office. 61. In a letter dated 5 May 1995 the Romanian Ministry of Justice informed the French Ministry of Justice that numerous approaches had been made to the police to locate the children, but to no avail, as D.Z. had withdrawn the children from school. The letter also stated that the Romanian authorities had lodged a criminal complaint against D.Z. for ill-treatment of minors. Lastly, the Romanian Ministry of Justice acknowledged that D.Z.'s bad faith was obvious and gave an assurance that it would continue to support the applicant in her endeavours. 62. On 10 May 1995 a group composed of the applicant, her lawyer, a representative from the Romanian Ministry of Justice, two bailiffs, three police officers and an official from the French embassy in Bucharest went to D.Z.'s home. The group was able to inspect the house but did not find the children there. During the four-hour discussion which followed, D.Z. stated that the girls were in Romania, but he refused to say more. He nevertheless promised to produce them to the Ministry of Justice on 11 May 1995. 63. A report drawn up by the French embassy in Bucharest on the visit of 10 May 1995 states: “Contrary to what had been announced by Mrs F. [of the Romanian Ministry of Justice] before this search, D.Z. was not arrested by the police for failure to return the children. In the course of the intervention the public prosecutor's office, with which Mrs. F. was in touch by telephone, reconsidered its position and refused to have D.Z. brought before it. This change of mind was probably due to an intervention by Mr. G., a very influential lawyer, after he had been alerted by his client D.Z. ...” 64. Neither D.Z. nor the children kept the appointment on 11 May 1995. 65. As a consequence, D.Z. received an official request to report to the Ministry of Justice with his children on 15 May 1995, with a view to interviewing the children in the presence of their mother. On 15 May 1995 only Mr G., D.Z.'s lawyer, went to the Ministry and reiterated his client's refusal to produce the children. 66. On 4 December 1995 a fresh attempt to execute the judgment was made. The applicant, her lawyer and a bailiff went to D.Z.'s home. Only the bailiff and the applicant's lawyer were allowed in by the two policemen from the sixth district who were already on the spot, the applicant being requested to stay outside. According to D.Z. and the policemen, the children were not in the house. The bailiff, however, was not allowed to check those assertions for himself. Shortly afterwards a police inspector whom neither the two police officers nor the bailiff knew arrived and asked D.Z. to produce the children to him on the following day. D.Z. finally accepted a proposal from the applicant's lawyer that he should produce the children at 10.30 a.m. the following day at the bailiffs' office at the Bucharest Court of First Instance. 67. On 5 December 1995 the bailiff, the applicant and her lawyer waited for D.Z. in vain. A report was drawn up on that occasion. 68. In a letter of 10 May 1996 the French Minister of Justice informed his Romanian counterpart of the applicant's fears that the Romanian police were turning a blind eye to D.Z.'s conduct. He therefore asked him to intervene with the Romanian police to ensure that they did everything possible to secure the children's return to their mother. 69. On 29 January 1997 the applicant met her daughters for the first time for seven years. The meeting lasted ten minutes and took place in Bucharest in the staffroom of the children's school, where D.Z. was himself a teacher. 70. The meeting was attended by a bailiff, two senior officials from the Romanian Ministry of Justice, the French Consul-General in Bucharest, two officers from police headquarters, the headmaster and deputy headmaster of the school and the girls' two form teachers. According to the report drawn up by the bailiff on that occasion, the purpose of the meeting was to convince those present of the girls' refusal to return to their mother. 71. When she saw the applicant, Maud tried to run away and threatened to throw herself out of the window if she was compelled to have dealings with her mother. There followed, without the applicant being present, a discussion in which Maud stated that her mother had lied to them and done a great deal of harm. She reiterated her wish to stay with her father and never to see her mother again. 72. As to Adèle, she began to cry and shouted to the applicant to go away, saying that she never wanted to see her again. Her form teacher took the initiative of terminating the interview so as not to traumatise the girl. Once the girls had been removed by the form teachers, the applicant said she no longer insisted on execution of the order of 14 December 1994 and asked the headmaster to keep her regularly informed of her daughters' performance at school. 73. In a letter of 31 January 1997 the Romanian Ministry of Justice, Romania's Central Authority, informed the French Ministry of Justice, France's Central Authority, of its decision to order that the children should not be returned. The reason for that decision was the children's obstinate refusal to see their mother again, which had been apparent at the meeting of 29 January 1997. 74. In a letter of 17 June 1997 the Romanian Ministry of Justice sent the applicant the girls' average marks for the school year 1996/97. 75. In a letter of 7 July 1997 to the Romanian Ministry of Justice the applicant complained that the headmaster had not honoured his promise to keep her regularly informed of her daughters' school results and expressed her disappointment at the paucity of the information supplied on 17 June 1997. She said she could not accept such a “farce”. | Following the applicant’s divorce a French court ruled, in a judgment that had become final, that the two children of the marriage were to live with her. In 1990, during the summer holidays, the children went to stay with her former husband, who held dual French and Romanian nationality and lived in the United States. However, at the end of the holidays, he refused to return them to the applicant. After changing addresses several times in order to elude the American authorities, to whom the case had been referred under the Hague Convention of 25 October 1980 on international child abduction, the applicant’s former husband managed to flee to Romania in March 1994. In December 1994 the Bucharest Court of First Instance issued an injunction requiring the children to be returned to the applicant. However, her efforts to have the injunction enforced proved unsuccessful. Since 1990 the applicant had seen her children only once, at a meeting organised by the Romanian authorities on 29 January 1997. The applicant alleged that the Romanian authorities had not taken sufficient steps to ensure rapid execution of the court decisions and facilitate the return of her daughters to her. |
545 | Violent acts by private individuals | I. THE CIRCUMSTANCES OF THE CASE A. Incidents of 28 February 2002 7. The following incidents occurred on 28 February 2002. The detailed accounts of events by the parties and those involved are at variance at times. In this section, therefore, the incidents are described only briefly. Differing details, if any, are pointed out in the subsequent sections. 1. Argument at the bar 8. In the evening of 28 February 2002, at around 7.30 p.m., an argument started in a bar in the village of Gánovce-Filice, when a non-Romani waitress, I. S. , refused to serve a drink to a person of Roma ethnic origin, M. K. 9. The argument developed with the tipping of a drink over M. K. , in response to which he slapped or attempted to slap Ms I. S. in the face, accidentally knocking glasses over, which fell and broke. 10. Subsequently I. S. telephoned one of her three sons, P. S. , who came to the bar soon afterwards. After he had left, another of her sons, M. S. , who was the owner of the bar, came to the bar and remained there, assisting I. S. in serving customers, until closing time. Around that time, the girlfriend of P. S. , E. N. , also came to the bar and then accompanied I. S. home. 2. Attack at Roma settlement (a) The attack 11. Later that evening, at around 9.45 p.m., a group of at least twelve people went into the Roma settlement in the village where the applicants lived. Some of them were wearing balaclavas and they were armed with baseball bats and iron bars. 12. Allegedly shouting racist language, they forcibly entered houses nos. 61, 67 and 69, damaging the interior and breaking the windows. 13. On entering house no. 67, the attackers physically assaulted applicant Mr Ján Koky. Some of the other applicants and another person, who were also present at the house during the attack, witnessed the attack but managed to avoid it by hiding (see paragraph 16 below). 14. Once the attackers understood that the police had been called, they made their escape. When they had gone approximately 200 metres from the settlement, they met applicants Mr Martin Kočko and Mr Rastislav Koky and physically assaulted them, causing them the injuries described below. Racist language is alleged to have been used during this part of the attack too. (b) Circumstances and consequences of the attack 15. House 61 was inhabited by applicant Ms Renáta Čonková and her partner, Z. K. They were both at home during the attack. 16. House 67 was inhabited by applicants Mr Ján Koky, Ms Žaneta Kokyová, Mr Rastislav Koky, Ms Renáta Kokyová, Ms Ružena Kokyová and Mr Ján Koky Jr and by a certain J. K. Apart from applicant Rastislav Koky, they were all present at the house during the incident, and so were applicants Mr Milan Baláž and a certain H. B. 17. When the attack took place in his house, applicant Mr Ján Koky sustained no physical injuries. 18. House 69 was owned and inhabited by applicant Ms Justína Lacková. 19. The overall damage to the applicants ’ property was estimated at the equivalent of at least 310 euros (EUR). 20. The parties are not united over the extent of the physical injuries sustained by Mr Martin Kočko and Mr Rastislav Koky (see paragraph 14 above). 21. The applicants claim that Mr Rastislav Koky suffered a skull fracture, a cut to the left side of the back of the head, a crushed left arm, a pressure injury to the left side of the back and bruises to the left knee, which required him to stay in hospital for ten to fourteen days. 22. As regards Mr Martin Kočko, the applicants claim that he had sustained a scraped elbow and a crushed arm, which required a recovery time of seven to ten days. In that respect the applicants relied on the decisions of 26 April and 22 May 2002 (see paragraphs 73 and 81 below). 23. In contrast, the Government submit that Mr Martin Kočko ’ s injuries necessitated no stay in hospital, while those of Mr Rastislav Koky only required him to stay in hospital for four days. 3. Attack at I. S. ’ s family ’ s house 24. After I. S. had come home from her shift, an unknown person broke the window of her house by throwing a stone at it and also broke the windows of a car parked in her yard. 25. It is not entirely clear what relation this attack bore to the argument at the bar and the attack at the settlement, both in terms of time and of cause. 26. It appears that those present during the attack at I. S. ’ s house included I. S. , P. S. , E. N. , her brother : M. N. , and a certain M. L. B. Initial response by the police 27. The police arrived at the Roma settlement about half an hour after the incident. That night and in the early hours of the following day, that is to say 1 March 2002, the police carried out inspections and interviews, as summarised below on the basis of official records. 1. Inspections 28. Between 10.30 and 11 p. m. house no. 67 was inspected in connection with a suspected offence, which was referred to as “damage to family house”. Applicant Mr Ján Koky, who lived in the house, was present. Broken windows were found in various parts of the house, and two biological traces were identified (bloodstains on a door and on a baseball bat) and sent for further analysis. 29. Between 0.15 and 1.00 a. m. house no. 61 was inspected in connection with a suspected offence, which was referred to as “damage to windows and door of a house”. Z. K. , whose house it was, was present. Damage to the latch and casing of the front door were identified, as well as broken panes in two of the windows. Inside the house, on the floor in the kitchen and a room where the windows had been broken, two stones of 8 and 20 cm diameter were found. 30. Between 1 a.m. and 1.30 a. m. the following day house no 69 was inspected in connection with a suspected offence, which was referred to as “damage to a window pane of a house”. Applicant Ms Justína Lacková, whose house it was, was present. Broken panes in three windows were identified, and one biological trace was sampled for further analysis. 2. Interviews 31. Applicant Mr Ján Koky, Z. K. and applicant Ms Justína Lacková were interviewed: the interviews started at 2.25 a. m. , 3.45 a. m. and 4.30 a. m. respectively. 32. Mr Ján Koky submitted, inter alia, that earlier that evening a group of approximately five attackers had entered his house, no. 67. They had been armed with batons and had tried to hit him. He managed to fend them off and other occupants of his house had managed to hide, so the attackers had mainly been hitting the kitchen furnishings. Four of the attackers were wearing balaclavas to conceal their faces. The remaining one, whom he did not know, had no balaclava. They had not uttered a word. 33. Z. K. described how the attackers had broken windows in his house, no. 61, had forcibly entered and had made their escape after learning that the police were on their way. According to the transcript, the interview ended at 4.20 a. m. Z. K. then added that when they entered his house the attackers were shouting: “Gypsies, we ’ re going to strike you down today”. 34. Ms Justína Lacková submitted that she had been at home with her three minor children during the attack and that her husband had not been there. She had witnessed the turmoil outside her house through a window. Two of her house windows had subsequently been broken, probably with sticks, because no stones or other foreign objects had been found inside. In her submission, the attackers had pounded at her entrance door but had not succeeded in getting in. Ms Lacková assessed the damage to her house and submitted a claim for compensation to the proceedings. The interview was concluded at 5.15 a.m. and then reopened to pose a direct question to the applicant, in response to which she retorted that, on the part of the attackers, she had only heard indistinct shouting. The interview was finally concluded at 5.30 a.m. C. First investigation into the incidents of 28 February 2002 1. Initial stage 35. On 1 March 2002 the Poprad District Police Investigator (“the DPI”) initiated a criminal investigation into the offences of causing bodily harm, violating the privacy of a home and criminal damage within the meaning of Articles 221 § 1, 238 §§ 1 and 3 and 257 § 1 of the Criminal Code (Law no. 140/1961 Coll., as applicable at that time) respectively. 36. It was suspected that a group of at least twelve individuals had unlawfully entered houses nos. 61, 67 and 69, and that they had damaged these houses, as well as house no. 69. It was also suspected that while at his house the attackers had tried to hit applicant Mr Ján Koky with baseball bats and that while making their escape from the scene of crime, they had assaulted applicants Mr Martin Kočko and Mr Rastislav Koky by hitting them with baseball bats and kicking them, thus causing them bodily injuries on account of which, according to a preliminary estimate, they would need recovery time and would be unfit for work for seven to ten days and ten to fourteen days respectively. 37. The injuries to the applicants Mr Martin Kočko and Mr Rastislav Koky were also assessed in an expert medical report procured by the DPI, in which their recovery time was assessed at four weeks and thirteen days respectively. 38. On 1 and 4 March 2002 respectively, an official note was made in the investigation file summarising the applicants ’ submissions and a document was included in it outlining the investigation strategy. 39. On 5 March 2002 at 10.00 and 10.50 a. m. respectively, the DPI interviewed I. S. and P. S. They described their involvement in the incident at the pub and the subsequent attack which took place at I. S. ’ s house and on his car. I. S. submitted, inter alia, that she had closed the bar and had gone home at around 9.50 p.m. P. S. submitted that the closing time of the bar was 10 p.m. and that his mother had arrived home after that time. 40. On 7 March 20 02 the DPI reported to the Ministry of the Interior on the status of the investigation. It was mentioned, inter alia, that the applicants ’ legal representative had been obstructing the investigation, in that he had instructed the applicants not to accept summonses to interviews if handed to them in person, and not to take part in any interviews unless he was present. The qualification of the representative to appear on the applicants ’ behalf in criminal proceedings in Slovakia was also called into question. 2. Interviews on 12 March 2002 41. In the morning of 12 March 2002, the DPI interviewed applicant Mr Rastislav Koky, T. K. and M. K. and applicants Mr Ján Koky Jr. and Mr Martin Kočko. These interviews started at 8.20, 9.15, 9.45, 10.10 and 10.40 respectively. 42. Mr Rastislav Koky described the pub incident between I. S. and M. K. According to him, following the altercation I. S. had called P. S. , who had arrived within five minutes, and who had warned Mr Koky that another son of I. S. would come round and there would be trouble. He also submitted that, later that evening, about thirty men had caught and beaten him, that he had subsequently had to be taken to hospital by ambulance, that he had been hospitalised for three to four days and that due to his injuries he was still unfit for work. In response to a direct question, Mr Rastislav Koky submitted that “during the attack, none of the attackers uttered a word”. 43. T. K. and M. K. submitted that on the evening of the incident they had seen I. S. with a group of forty to fifty men approaching the Roma settlement. 44. Mr Ján Koky Jr. described the pub incident, including the remark that P. S. had told him and others to go away because his brother would come and there would be trouble. Mr Ján Koky Jr. also submitted that, after he had seen his brother, applicant Mr Rastislav Koky, and his injuries, he had been convinced that P. S. was responsible. He had therefore gone to I. S. ’ s house, where he had had a verbal exchange with E. N. and M. N. However, he had gone away after the latter had produced a handgun and threatened to shoot him. 45. Mr Martin Kočko described the pub incident, the arrival of P. S. in the pub, the departure of about forty-five men and the assault on him by four individuals wearing balaclavas to conceal their faces and two without, accompanied with a cry “Negroes, gypsies, we ’ re going to kill you”. After receiving medical care in hospital, he had gone home and had not been hospitalised. 3. Interviews of 13 March 2002 46. During the morning of 13 March 2002 the DPI interviewed applicants Mr Milan Baláž, Ms Žaneta Kokyová, Ružena Kokyová and Mr Ján Koky. They also interviewed H. B. , the respective interviews having commenced at 8.50, 9.20, At 9.50, 10.25 and at 10.55. 47. Mr Milan Baláž submitted his account of the assault at house no. 67, where he had been present at the relevant time, visiting his girlfriend. In his submission, the assault had been accompanied by a shout of “Gypsies get out, we ’ re going to kill you!” 48. Ms Žaneta Kokyová, who lived in house no. 67, gave an account of the assault at their house and settlement, submitting that it had been accompanied by shouts of “ Get out!”, “[ religious expletive ], gypsy whores, gypsy gang, get out, or else we are going to kill you all!” and “Gypsy whores, today you are dead, you are going to get a kicking today !”. 49. Ms Ružena Kokyová gave an account of the attack at her house, no. 67, submitting that it had been accompanied by a male voice shouting “Gypsies, black muzzles, today you are going to get killed, get out!”. 50. Mr Ján Koky gave an account of the attack at house no. 67, where he lived, submitting that it had been accompanied by shouts of “Gypsies, today you are going to be burned ”. 51. H. B. , who was in house no. 67 during the attack, gave an account of it and submitted that it had been accompanied by shouts of “Gypsies, black muzzles, get out!” 4. Extension of the investigations 52. On 13 March 2002 the DPI initiated a criminal investigation into a further offence, namely that of violence against an individual or a group of individuals within the meaning of Article 196 §§ 1 and 2 of the Criminal Code. 53. The decision was based on the suspicion that, in the incident described above, several unidentified individuals had entered the Roma settlement shouting “Gypsies, come out or we will kill you”, while some of them had gone into houses 61 and 67 shouting “Gypsies, come out or we will kill you”. 54. The decision refers to the charges of 1 March 2002 and to subsequent statements from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Kokyová and Mr Ján Koky Jr. 55. The decision also refers to the assault on applicant Mr Martin Kočko being accompanied by shouts of “Negroes, gypsies, we will kill you! ”. 5. Interviews of 14 March 2002 56. The series of interviews started at 8 a. m. with P. J. , continued at 8.35 a.m. with Ms E.N., and at 9.10 a.m. with the last son of I.S.: M.S. 57. P. J. said that he could see that I.S. was distressed when he arrived at the bar. E. N. described her arrival at the bar and what happened while she was there, that she went with I. S. to her house, and the subsequent incident there. The deposition of M. S. was fully in line with those of his family members. 6. Interviews of 20 March and 10 April 2002 58. In the morning of 20 March 2002 the DPI interviewed applicant Ms Renáta Čonková, J. K. and applicant Ms Renáta Kokyová, whose interviews began at 9.10, 9.45 and 10 a.m. respectively. 59. Ms Renáta Čonková gave an account of the attack at the house of applicant Ján Koky, which she had observed through the window of her own house. In her submission, the attack at the house of the applicant Ján Koky was accompanied by a shout of “Black whores, today we ’ re going to kill you! ”. As to Ms Čonková ’ s own house, five windows had been broken by thrown stones which were found inside. The attackers had only got as far as a corridor in the house before they made their escape. 60. J. K. gave an account of the attack at house no. 67, in which she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today you will kick the bucket”. 61. Ms Renáta Kokyová gave an account of the attack at house no 67, where she lived. In her submission, the attack was accompanied by a shout of “Gypsy whores, today we ’ re going to kill you”. 7. Interviews of 27 March and 10 April 2002 62. The morning of 27 March 20 02 saw a long series of short interviews, starting at 8 with applicant Mr Ján Koky, at 8.10 with applicant Ms Ružena Kokyová, at 9 with H. B. , at 9.30 with J, K, , at 9.35 with applicant Mr Rastislav Koky, at 9.40 with applicant Ms Renáta Kokyová, at 9.45 with applicant Mr Milan Baláž, at 9.50 with applicant Ms Žaneta Kokyová, at 9.55 with Z. K. , at 10.05 with applicant Ms Renata Čonková, at 10.10 with applicant Ms Justína Lacková, and at 10.25 with applicant Mr Martin Kočko. 63. Mr Ján Koky, Z. K. and J. K. completed their respective depositions of 1 and 20 March 2002 in so far as the extent of the material damage they had sustained was concerned, and added a claim for compensation to the proceedings. 64. Ms Justína Lacková specified the damage she stated she had sustained and for which she was seeking compensation. 65. Ms Ružena Kokyová, HB, Ms Žaneta Kokyová, Mr Milan Baláž, Ms Renáta Kokyová and Ms Renáta Čonková completed their respective depositions of 13 and 20 March 2002 and declared that they had no compensation claim to join to the proceedings, as they themselves had not sustained any material damage. Ms Renáta Kokyová added that compensation for any damage sustained by their family would be claimed by her husband. 66. Mr Rastislav Koky and Mr Martin Kočko completed their respective depositions of 1 2 March 20 02 in that they specified that, as a result of the injuries sustained in the attack, Mr Rastislav Koky had been incapable of work for fourteen days, from 28 February to 14 March 2002, and Mr Martin Kočko was still unable to work. 67. At 8 a.m. on 10 April 20 02 the DPI started interviewing applicant Mr Ján Koky Jr, who completed his depositions of 1 March 2002 in so far as the extent of the material damage he had sustained was concerned, and added a claim for compensation to the proceedings. 8. Further investigative actions 68. Without providing any details the Government submitted that “[the authorities] had requested records of incoming and outgoing communication to and from mobile phones of [ I. S. ], [ M. S. ], [P. S. ] and [ E. N. ] ”. 9. Identity exercise on 10 April 2002 69. On 10 April 2002 the DPI held an identity exercise, in the course of which the participants were to identify presumed perpetrators from photographs in albums. It produced the following results: - applicant Mr Ján Koky identified one person, with a subjectively perceived probability of seventy to eighty percent, as one of the people who had been attacking him in his house; - applicant Mr Martin Kočko recognised one individual, who had been present at the pub during the argument, but had not been among those who had beaten him. He also identified one individual who had been among those who had beaten him, of which he was sixty percent sure. - applicant Ms Žaneta Kokyová identified one individual, with a subjectively perceived probability of fifteen to twenty percent, as an intruder in their house and an attacker of her father; - applicant Mr Rastislav Koky recognised two individuals who had been present at the pub during the argument but had not been among those who had beaten him. He also identified one individual who had been present at the settlement during the attack but was not sure whether that individual had beaten him; and - applicants Mr Milan Baláž, Ms Renáta Kokyová and Mr Ján Koky Jr. did not identify anyone. 70. In what may appear to be a follow - up to the identity exercise, on 19 April 20 02, the DPI requested the Police Institute of Forensic Analysis to examine buccal mucus samples of three individuals, B. B. , V. P. and E. K. and to compare biological material thus obtained with other biological evidence taken from the scene of crime. 10. Conclusion of the first investigation 71. On 26 April 2002 the DPI suspended the above-mentioned criminal investigations. The decision stated that the police had taken several investigative measures and had carried out a search with a view to establishing the identity of the perpetrators of the assault of 28 February 2002. Until then, however, no evidence could be established which would have made it possible to bring charges against a specific person. 72. The decision of 26 April 2002 also stated that it was established that the incident at the Roma settlement “had been preceded by an assault on a waitress, I. S. , by a Roma, M. K. , and subsequent damage to the property of the family of I. S. by a hitherto unidentified Roma and so the actions of the unidentified perpetrators [could] not be considered or qualified as a criminal offence with a racial motive, because it [had come] down only to an act of retribution”. 73. As to the injuries sustained by applicants Mr Rastislav Koky and Mr Martin Kočko, the decision refers to the decision of 1 March 2002 and its contents (see paragraph 36 above). D. Second investigation into the incidents of 28 February 2002 1. Opening of the second investigation and initial steps taken 74. On 3 May 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal ( sťažnosť ) against the decision to suspend the investigation. Referring to the facts of the case, they submitted that the assault had been racially motivated and that it had been organised by people who were close to the family of the waitress concerned. Citing, inter alia, Articles 5 and 13 of the Convention, they sought resumption of the investigation. 75. On the same day, namely 3 May 2002, the Poprad District Prosecutor ( Okresná prokuratúra ) (“the District Prosecutor”) issued a written instruction to the DPI specifying the measures to be taken and lines of inquiry to be pursued in order to establish the identity of the perpetrators and highlight the alleged racial motive. 76. Still on 3 May 2002, the DPI took a decision to resume the investigation. That decision contains a summary of the previous procedural developments, followed by a plain statement, without further elucidation, that “ during further investigation it [had been] established that a racially motivated criminal offence [was] implicated and therefore it [was] necessary to take further investigative steps and resume the investigation ... ”. 77. On 14 May 2002 the Police Forensic Analysis Institute filed a report with the DPI concluding that, having examined the biological material of B. B. , V. P. and E. K. (see paragraph 70 above) and having compared it with the material taken from the crime scene, no link could be established. 2. Interviews of 20 and 21 May 2002 78. In the morning of 20 May 2002, at 8. 40, 8.50, 9 and 9.15 respectively, the DPI commenced interviewing M.S., P.S. and F.S., as well as M.N. They completed their respective submissions of 14 March, 19 March, 17 April and 3 May 2002 and agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the crime scene. 79. On 21 May 2002 at 8 am the DPI commenced interviewing M. L. , who gave an account of his arrival in the village and at the bar and also of his perception of the incident at the house of I. S. He stated that he had not been at the Roma settlement. 80. The following day the DPI again requested the Police Forensic Analysis Institute to analyse and compare biological material obtained from the three sons of I. S. , M. N. and M. L. with the material taken from the scene of crime. 3. Decision on the first interlocutory appeal 81. On 22 May 2002 the District Prosecutor declared the interlocutory appeal of applicants Mr Ján Koky and Mr Rastislav Koky of 3 May 2002 (see paragraph 74 above) inadmissible, replying on Articles 43, 124 § 1, 148 § 1 (b) and 173 § 4 of the CCP, and holding that as victims of the alleged offences the appellants had no standing to challenge the decision in question. 82. In its concluding part, which under the applicable procedural rules (see paragraph 125 below) contains information concerning available remedies, the decision provided that : “ An interlocutory appeal against this decision is not permissible. ” 83. However, in a letter of the same date, namely 22 May 2002, the District Prosecutor informed the applicants that she had reviewed the matter on her own authority, that on 3 May 2002 (see paragraph 75 above) she had quashed the decision, and that she had instructed the DPI to carry on the investigation so as to clarify the events without leaving any doubt as to the identity and motive of the alleged perpetrators. 4. Investigative actions taken between 23 May and 18 June 2002 84. At 8 a.m. on 23 May 2002 the DPI commenced interviewing E. K. During the morning of 4 June 2002 they interviewed R. S. (at 8.30), I. K. (8.45), J. H. (9 .00 ) and M. K. (9.10). On 6, 7 and 18 June 2002 respectively the DPI interviewed J.K. (at 10 a.m. ), P.P. ( at 10 a. m. ) and B.P. (before 9 a. m. ). 85. They all had either already provided or agreed to provide buccal mucus samples for the purposes of DNA testing and comparison with the biological material taken from the scene of crime. 86. In addition, E. K. submitted that he had not been at the Roma settlement and that he had no explanation of how he could have been identified as someone involved in the attack. 87. R. S. acknowledged having been at the bar with B. P. and J. K. (see paragraphs 9 1 and 93 below) during the incident, which however he had not seen, and he had no information concerning the event investigated. 88. I. K. stated that he had no knowledge of the incident, of which he had learned from the media, and that he had not been at the Roma settlement. 89. J. H. had been away on a skiing trip from 28 February until 1 March 2002. 90. M. K. had been away on business in the week in question and had only returned on 1 March 20 02. 91. J. K. had been at the bar during the incident, but had not witnessed it directly. He had not been at the Roma settlement and had no knowledge of who had been there. 92. P. P. acknowledged knowing M. S. However, he had not been at the Roma settlement, remembered nothing useful and had no explanation of why one of the victims had identified him as someone involved in the attack which took place in their house. 93. B. P. acknowledged having been at the bar with R. S. and J. K. (see paragraphs 87 above and 91 above), but he had not directly witnessed the incident. He had not been at the Roma settlement, nor did he have any knowledge of anyone who had been there. 94. On 18 June 2002 the Police Forensic Analysis Institute reported to the DPI that, having examined the biological samples taken from F.S., P.S., M.S., M.N. and M.L. (see paragraph 80 above) and having compared it with the material taken from the scene of crime, no link could be established. 5. Conclusion of the second investigation 95. On 26 June 2002 the DPI again suspended the investigation, relying on Article 173 § 1 (e) of the CCP, and referring to similar considerations to those in the decision of 26 April 2002. It summarised previous procedural developments and observed that, despite additional information taken from H.B., T.K., M.K. and applicants Mr Ján Koky, Mr Martin Kočko, Ms Žaneta Kokyová, Mr Milan Baláž, Mr Rastislav Koky, Ms Ružena Koky and Mr Ján Koky Jr., it had not been possible to establish any evidence allowing charges to be brought against any specific person. However, it was considered established that the attack at the Roma settlement had been preceded by the incident at the bar and had been followed by the attack at the house of the family of Ms I. S. 6. Interlocutory appeal and submission to the Prosecutor General 96. On 3 July 2002 applicants Mr Ján Koky and Mr Rastislav Koky lodged an interlocutory appeal against the decision of 26 June 2002, requesting that the criminal proceedings be resumed with a view to establishing the relevant facts of the case. 97. The appellants relied on Articles 5, 6, 8, 13 and 14 of the Convention, 1 of Protocol No. 1 and 15 and 21 of the Constitution and referred to the results of the identity exercise on 10 April 2002. In particular, they emphasised that, on that occasion, applicant Mr Martin Kočko had recognised one person; applicant Mr Rastislav Koky had recognised F. S. and submitted that the organisation of the attack had had a connection with the family of I. S. ; and applicants Mr Ján Koky and Ms Žaneta Kokyová had recognised one person each. 98. On 11 July 2002 the applicants ’ representative wrote to the Prosecutor General to inform him that they had lodged an interlocutory appeal against the decision of 26 June 2002 with the District Prosecutor and that they suspected that the investigation had been tampered with in order to downplay the racial motive for the assault. He requested that the applicants be informed of the Prosecutor General ’ s office ’ s actions in the matter. 99. The applicants have not received any answer to their letter of 11 July 2002, and it appears that it has not given rise to any specific action or decision. According to an official statement of the Office of the Prosecutor General the letter is not a part of their case file. 100. On 17 July 2002 the District Prosecutor declared the interlocutory appeal inadmissible on similar grounds to those in the decision of 22 May 2002, relying on Articles 43, 142 § 1 a 173 of the CCP. 101. The decision contains information as to the available remedies, to the effect that: “An interlocutory appeal against this decision is not permissible.” 102. Nevertheless, the District Prosecutor reviewed the decision on her own initiative and, by a letter of the same day, namely 17 July 2002, informed the appellants that the DPI had taken all the actions necessary to carry out a successful prosecution. 103. According to the letter, it was true that applicant Mr Rastislav Koky had recognised P. S. , F. S. and M. N. , but he had submitted either that they had not beaten him or that he was not sure whether they had beaten him. Applicant Mr Ján Koky had recognised F. S. and had submitted that it was the latter who had beaten him in his house. This submission however contradicted a previous submission by applicant Mr Ján Koky (see paragraph 32 above) to the effect that, of the five attackers in his house, four were wearing balaclavas and one, whom he did not know, was not. It was also observed that Ms Žaneta Kokyová had not recognised any of the attackers. 104. The letter further states that additional action had been taken with a view to identifying those responsible, such as a comparison of the traces found at the scene of the incident with buccal mucus samples from the suspects, but the available evidence did not permit the bringing of charges against any particular person. 7. Further investigative steps 105. Meanwhile, on 11 July 20 02 and again on 19 August and 8 November 2002, the DPI interviewed seven other individuals. These interviews however produced no useful new information. 106. On an unspecified date, in response to a request of 20 August 20 02, the Police Institute of Forensic Analysis reported to the DPI that, having examined buccal mucus samples from P. G. , M. S. and M. A. and compared it with the biological material taken from the scene of crime, no link could be established. 107. On 13 January 20 03, in response to a request, the DPI reported to the District Prosecutor that hitherto “no perpetrator had been identified and that tasks were continuously being carried out under an integrated investigation plan ”. 108. No information has been made available in respect of any further investigative actions and their outcome. E. Constitutional complaint 109. On 17 September 2002 all ten applicants lodged a complaint with the Constitutional Court under Article 127 of the Constitution. Represented by a lawyer, they contended that the events of 28 February 2002 had not been sufficiently thoroughly and efficiently investigated to ensure that those responsible were identified and punished. In particular, they submitted that the authorities had failed to draw adequate conclusions from the oral evidence and from the information concerning the identity of the alleged perpetrators, as obtained from the identity exercise of 10 April 2 002. In addition, the authorities should have taken and assessed further evidence, such as records of mobile telephone communications between those involved, but had not done so. The applicants also contended that the assault had not been motivated by revenge but was racially motivated, to which the authorities had failed to pay adequate attention. 110. In the text of their complaint the applicants made reference to Article 1 § 2 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended), in conjunction with a principle of “general acceptance and observance of human rights and basic freedoms for everybody”, Articles 5 § 1 and 13 of the Convention and the Court ’ s judgment in the case of Aksoy v. Turkey (18 December 1996, Reports of Judgments and Decisions 1996 ‑ VI). 111. In the standardised prescribed form containing a summary of their claim, the applicants applied for a ruling declaring a violation of their right to an effective remedy under Article 13 of the Convention and to judicial and other legal protection under Article 46 § 1 of the Constitution by actions of the DPI in the investigation referred to above. 112. On 23 October 2002 the Constitutional Court declared the complaint inadmissible on the ground that the applicants had failed to exhaust all remedies as required by section 53(1) of the Constitutional Court Act (Law no. 38/1993 Coll., as amended ). 113. In particular, the Constitutional Court held that it had been open to the applicants to ask the Public Prosecution Service (“the PPS”), under Articles 167 and 174 § 2 (a) and (c) of the CCP, to instruct the DPI to proceed with the case. Had such a request been dismissed, the applicants could have used further remedies available to them under sections 31 et seq. of the PPS Act. No appeal against the decision of the Constitutional Court was available. | The applicants were ten Slovak nationals of Roma ethnic origin. In February 2002 several men armed with baseball bats and iron bars, shouting racist language, allegedly attacked their settlement following an incident in a bar when a non-Roma waitress refused to serve a drink to a Roma. The applicants alleged that they had been ill-treated and submitted that the Slovakian authorities had failed to carry out a prompt, impartial and effective investigation into the attack. |
762 | Right to life and right to respect for private life | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1953 and lives in Meltingen (Canton of Solothurn). 7. The applicant has been suffering from a serious bipolar affective disorder for about twenty years. During this period he has twice attempted suicide and has stayed in psychiatric hospitals on several occasions. On 1 July 2004 he became a member of Dignitas, an association which offers, among other services, assisted suicide. Taking the view that his illness, for which treatment is difficult, made it impossible for him to live with dignity, the applicant asked Dignitas to assist him in ending his life. He approached several psychiatrists to obtain the necessary lethal substance, namely 15 grams of sodium pentobarbital, which is available only on prescription, but was unsuccessful. A. The applicant ’ s requests to the authorities 8. On 8 June 2005 the applicant contacted various official bodies seeking permission to obtain sodium pentobarbital from a pharmacy without a prescription, through the intermediary of Dignitas. 9. The Federal Office of Justice found that it did not have jurisdiction to grant his request and rejected it on 27 June 2005. 10. On 20 July 2005 the Federal Department of Public Health dismissed the applicant ’ s claim on the ground that sodium pentobarbital could only be obtained on prescription from a pharmacy. It also expressed its opinion that Article 8 of the Convention did not impose on the States Parties a positive obligation to create the conditions for committing suicide without the risk of failure and without pain. 11. On 3 August 2005 the Health Department of the Canton of Zürich also dismissed the applicant ’ s request, finding that, in the absence of the necessary medical prescription, he could not be authorised to obtain the substance in question from a pharmacy. It too noted that such a right could not be inferred from Article 8 of the Convention. That decision was upheld by the Administrative Court of the Canton of Zürich on 17 November 2005. 12. On 20 December 2005 the Federal Department of the Interior declared inadmissible an appeal lodged by the applicant against the decision of 20 July 2005, on the ground that this was not an emergency in which a substance usually subject to medical prescription could be delivered without one. It noted that only a doctor could issue the relevant prescription. 13. The applicant lodged appeals with the Federal Court against the decisions of the Federal Department of the Interior and the Administrative Court of the Canton of Zürich. Relying in particular on Article 8 of the Convention, he alleged that this provision guaranteed the right to choose to die and that State interference with this right was acceptable only in the conditions set out in the second paragraph of Article 8. In the applicant ’ s opinion, the obligation to submit a medical prescription in order to obtain the substance necessary for suicide, and the impossibility of procuring such a prescription – which, in his view, was attributable to the threat that hung over doctors of having their licence withdrawn by the authorities should they prescribe the substance in question to mentally ill persons – amounted to interference with his right to respect for his private life. He argued that while this interference was admittedly in accordance with the law and pursued a legitimate aim, it was not, in his case, proportionate. B. The judgment of the Federal Court 14. By a judgment of 3 November 2006, the Federal Court joined the two sets of proceedings and dismissed the applicant ’ s appeals. 15. It noted, firstly, that, pursuant to the applicable legal provisions, sodium pentobarbital could only be obtained on medical prescription and that the applicant had not obtained such a prescription. It further noted that this was not an exceptional case in which a medical product could be issued without a prescription. 16. As to the alleged violation of Article 8 of the Convention, the Federal Court found as follows : [ Translation ] “ 6.1. ... The right to self-determination within the meaning of Article 8 § 1 [ of the Convention] includes the right of an individual to decide at what point and in what manner he or she will die, at least where he or she is capable of freely reaching a decision in that respect and of acting accordingly ... 6.2.1. The right to choose to die, which is not as such in issue here, must however be distinguished from the right to assistance with suicide from the State or a third party. In principle, such a right cannot be inferred either from Article 10, paragraph 2, of the Federal Constitution [ enshrining individual freedom ] or from Article 8 of the Convention; an individual who wishes to die does not have a right to be assisted in committing suicide, whether by the provision of the necessary means or through active assistance where he or she is not capable of ending his or her own life ... The State has a fundamental obligation to protect life. Admittedly, such protection is not generally extended against the will of a person who is capable of forming his or her own views ... Nonetheless, it does not follow that the State has a positive obligation to ensure that a person who wishes to die has access to a dangerous substance, selected for the purpose of suicide, or to tools intended to be used for that purpose. In such circumstances, the right to life guaranteed by Article 2 of the Convention obliges the State, at the very least, to put in place a procedure to ensure that a decision to commit suicide does indeed correspond to the free will of the individual in question ... 6.2.2. The foregoing is confirmed by the case-law of the Strasbourg institutions: Article 2 [ of the Convention] guarantees no right to die, whether with the assistance of a third party or of the State; the right to life has no corresponding negative freedom ( judgment in Pretty v. the United Kingdom, no. 2346/02, § 40, ECHR 2002 ‑ III ) ... Article 3 does not in principle oblige the State to guarantee criminal impunity for assisting a person to commit suicide or to create a legal basis for another form of assistance with that act; the State must not sanction actions intended to terminate life ( Pretty, cited above, §§ 55 et seq. ). With regard to Article 8, the Court found that – without in any way negating the principle of sanctity of life – the quality of life and, in consequence, the question of the individual ’ s autonomy play a role under this provision ( judgment in Pretty, cited above, § 65). The Court stated that it ‘ [was not prepared] to exclude ’ that the fact that the applicant was precluded from exercising her choice to avoid what she consider [ ed would] be an undignified and distressing end to her life constituted an interference with her right to respect for private life within the meaning of Article 8 § 1 of the Convention ( Pretty, cited above, § 67; see also the judgment of the Supreme Court of Canada in the case of Rodriguez v. British Columbia [Attorney General; [1993] 3 S.C.R. 513], and Judge Sopinka ’ s opinion as the basis of the majority ’ s findings ); this had already been presaged in the 1983 Reed case, where the Commission had emphasised that the activity of a person aiding and abetting suicide did not, as such, fall within the sphere of Article 8, but that, on the contrary, the protection of the private life of the person seeking to die could be at stake ( inadmissibility decision in Reed v. the United Kingdom, no. 7630/76, Commission decision of 4 July 1983, Decisions and Reports 33, p. 273, § 13). 6.2.3. The case of Pretty ( like that of Rodriguez ) is not comparable to the instant case: the applicant ’ s freedom to commit suicide, and consequently the impunity of an individual who might provide assistance to that end, providing he or she is not acting from selfish motives ( Article 115 of the Criminal Code ), are not in issue here. The matter in dispute is whether, on the basis of Article 8, the State must take steps to ensure that the applicant is able to end his life without pain and without risk of failure, and that, in consequence, he is able to obtain sodium pentobarbital without a medical prescription, in derogation from the legislation. This question must be answered in the negative: admittedly, the Convention guarantees not rights that are theoretical or illusory but rights that are practical and effective ( judgment in Artico v. Italy, 13 May 1980, § 33, Series A no. 37 ); it does not appear, however, – given that other options exist – that the freedom to commit suicide and, accordingly, the freedom to choose one ’ s own quality of life are restricted by the mere fact that the State does not authorise the unconditional issue of the substance in question, but makes it dependent on the presentation of a medical prescription, issued on the basis of the ‘ recognised rules of pharmaceutical and medical science ’ and knowledge of the health of the individual concerned (section 24 ( 1 ) (a) taken in conjunction with section 26 of the LPTh [ Federal Medicines and Medical Devices Act ], and section 9 ( 1 ), taken in conjunction with section 10, of the Lstup [ Federal Drugs Act ]). In order to guarantee effectively the freedom to choose to end one ’ s own life, derived from Article 8 § 1 of the Convention, it is not necessary to authorise unrestricted availability of sodium pentobarbital, even if this substance is supposedly highly suitable for the act of committing suicide. The mere fact that solutions other than sodium pentobarbital entail higher risks of failure and greater pain is not sufficient to justify the provision, without prescription, of this substance for the purpose of suicide. Such a positive obligation cannot be inferred either from Article 10 § 2 of the Federal Constitution or from Article 8 of the Convention ... ... 6.3.2. The obligation to submit a medical prescription has a clear, accessible and foreseeable legal basis, namely, in respect of domestic law, sections 24 and 26 of the Federal Medicines and Medical Devices Act and sections 9 and 10 ( 1 ) [ sic ] of the Federal Drugs Act, and, with regard to international law, Article 9 § 1 and Schedule III of the [United Nations] Convention on Psychotropic Substances of 21 February 1971. Generally speaking, this obligation is intended to protect the health and safety of the population and, in the context of assisted suicide, to prevent the commission of criminal offences and combat the risks of abuse ( Pretty judgment, cited above, §§ 74 and 75 .. .). A substance which, when ingested, leads to death, cannot simply be dispensed by a pharmacist without any knowledge of the circumstances of the case; in the patient ’ s interests, provision of such a substance must be subject to the presentation of a medical prescription. A medical prescription presupposes a diagnosis drawn up on the basis of a doctor ’ s professional code of ethics, a medical indication ( Indikationsstellung ) and an information-seeking interview. Only a doctor can assess a patient ’ s capacity for discernment and his or her medical records, and determine whether all treatment options have been exhausted to no avail ... The obligation to obtain a prescription for sodium pentobarbital is a guarantee that doctors will not issue this substance without all the necessary conditions being fulfilled, since otherwise they would leave themselves open to criminal, civil or disciplinary sanctions ... It protects individuals from hasty and unconsidered decisions ... and guarantees the existence of a medical justification for the action. ... A potential interference with the right to self-determination protected by Article 8 of the Convention has only a relative bearing in view of the consequences attached to issuing sodium pentobarbital for the purpose of suicide. ... In contrast, the protection of life, the prohibition of murder and the latter ’ s delimitation with regard to assisted suicide, which is not a priori subject to penalties, represent a significant public interest. ... While assisted suicide by medical means is authorised, a matter that, given the importance of the ethical issue at stake, must in the first instance be assessed by the legislature ( see the above-cited Pretty judgment, § 74 in fine ), the State is entitled to put in place a procedure for review, thus guaranteeing that the decision of the individual concerned does indeed correspond to his or her free and considered will ...; to that end, the obligation to obtain a medical prescription is appropriate and necessary. In so far as the applicant alleges that this argument does not take into consideration the 1, 300 cases of suicide and the 63, 000 cases of attempted suicide per year, in which the State allegedly fails to comply with its duty of protection, it must be emphasised that those cases do not, as the instant case does, concern the question of dispensing, without prescription, a substance for the purpose of suicide and are thus not comparable to the present situation. ... 6.3.4. The regulations on assisted suicide are relatively liberal in Switzerland, in so far as assistance or incitement is punishable only in the event of selfish motives ( Article 115 of the Criminal Code ). In contrast, the legislature remains free, in weighing up the interests at stake – the right to self-determination of persons wishing to kill themselves on the one hand, and protection against impulsive suicides ( Affektsuizid ) on the other – to make the legality of assisted suicide and the provision of a dangerous product subject to compliance with professional rules and the state of medical science. The Guidelines on End of Life Care issued by the Swiss Academy of Medical Sciences on 25 November 2004 acknowledge that, in borderline cases, a doctor may be faced with an ‘ intractable conflict ’ (point 4.1 of the Guidelines ). Clearly, assisted suicide cannot be considered as part of a doctor ’ s activities, since it is self-evident that such an action goes against the aim of medicine; however, respect for the patient ’ s wishes is also fundamental to the relationship between the doctor and patient, so that the doctor may be led to take a decision in all conscience, a decision that ought to be respected. If the doctor opts for assisted suicide, he is guarantor of the fact that: (1) the patient ’ s illness makes it likely that death is close; ( 2) other options for support have been discussed and, where appropriate, put into place; and ( 3) the patient is capable of discernment, his or her wish appears to be carefully considered, is not the result of external pressure and is to be regarded as final, which must be verified by an independent third party who need not necessarily be a doctor; the final act which leads to death must always be carried out by the patient himself. Contrary to the applicant ’ s assertions, a doctor is entitled, in the context of the recognised professional rules, to prescribe sodium pentobarbital for the purpose of suicide, provided that the conditions for doing so are fulfilled. As the Federal Court has already observed, a change in attitude is to be perceived in modern society, in the sense that assisted suicide is increasingly considered as a voluntary medical activity which cannot be imposed on any doctor, but which is not excluded by the rules of professional conduct and supervision, provided that the duty of medical care is respected in examining patients, diagnosing them and dispensing the product ( judgment 2P.310/2004 of 18 May 2005, paragraph 4.3, with references ), and provided that doctors do not allow themselves to be guided solely by their patient ’ s wish to die and fail to examine the reasons for such a decision in accordance with the applicable scientific criteria ... 6.3.5. The question of prescribing and dispensing sodium pentobarbital is particularly problematic in cases of mental illness : 6.3.5.1. It must not be forgotten that a serious, incurable and chronic mental illness may, in the same way as a somatic illness, cause suffering such that, over time, the patient concludes that his or her life is no longer worth living. The most recent ethical, legal and medical opinions indicate that in such cases also the prescription of sodium pentobarbital is not necessarily precluded or to be excluded on the ground that it would represent a breach of the doctor ’ s duty of care ... However, the greatest restraint must be exercised : it is necessary to distinguish between a desire to die as the expression of a psychological disorder which can and must be treated, and a wish to die that is based on the considered and sustained decision of a person capable of discernment ( ‘ pre- suicide assessment ’ ), which must be respected as applicable. Where the wish to die is based on an autonomous and all-embracing decision, it is not prohibited to prescribe sodium pentobarbital to a person suffering from a psychiatric illness and, consequently, to assist him or her in committing suicide ... 6.3.5.2. The question of whether the conditions have been met in a given case cannot be examined without recourse to specialised medical – and particularly psychiatric – knowledge, which is difficult in practice; a thorough psychiatric examination thus becomes necessary .. ., which can only be guaranteed if the obligation to submit a prescription in order to obtain sodium pentobarbital is maintained, and if responsibility does not lie solely with private organisations for assisted suicide. The activities of such organisations have been criticised on several occasions; a study carried out in Basle, analysing 43 cases of assisted suicide by the organisation Exit between 1992 and 1997, rightly criticised the failure to take into account psychiatric or social factors in the decision to end one ’ s life ... Accordingly, one cannot argue that issuing sodium pentobarbital and delegating responsibility for its use to an organisation for assisted suicide is equally compatible with the purpose of the legislation as maintaining the obligation to obtain a medical prescription. 6.3.6. To conclude, it is appropriate to note that – contrary to the applicant ’ s allegations – neither Article 8 of the Convention nor Article 10 § 2 of the Federal Constitution ... impose an obligation on the State to issue, without medical prescription, sodium pentobarbital to organisations for assisted suicide or to persons who wish to end their lives. The requirement of a medical prescription for sodium pentobarbital has a legal basis, is intended to protect public safety and health and to maintain order in the public interest, and is also a proportionate and necessary measure in a democratic society. In weighing up the interests at stake, namely the protection of life – which requires (as a minimum) verification, on a case-by-case basis, of whether individuals ’ decisions to end their lives genuinely correspond to their free and considered will where they opt for assisted suicide using a product subject to legislation on drugs or medicinal products –, and the individual ’ s right to self-determination, the State remains free – from the standpoint of constitutional law or of the Convention – to lay down certain conditions and, in this context, to maintain, inter alia, the obligation to obtain a prescription for sodium pentobarbital. The (summary) medical documents submitted [ by the applicant ] alter nothing in his case; the delivery of a substance for the purpose of assisted suicide necessitates, in his case too, a thorough and considered examination and a medical indication, and, with regard to the genuineness of his wish to die and capacity for discernment in this connection, monitoring over a certain period by a medical specialist who would subsequently be able, as appropriate, to issue a medical prescription; in contrast, in the context of the present case [the applicant] cannot receive such a prescription by requesting that the obligation to present a prescription be lifted; for this reason, the explanations with regard to his capacity for discernment do not appear relevant ( Pretty judgment, cited above, §§ 74-77) ...” C. The applicant ’ s subsequent requests to doctors 17. On 2 May 2007 the applicant sent a letter to 170 psychiatrists, almost all of whom, according to the information available to the Court, practise in the Basle region. He asked each of them whether they would agree to see him for the purpose of carrying out a psychiatric examination and with a view to issuing a prescription for sodium pentobarbital. The letter was worded as follows : [ Translation ] “Dear Sir / Madam, Please find attached a copy of a Federal Court judgment in my case. I had asked the Federal Court to be granted direct access to sodium pentobarbital so that, with the help of Dignitas, I could commit assisted suicide without risk of failure and without pain. Admittedly, the Federal Court has accepted that the right to choose the time and manner of one ’ s death is a human right. At the same time, it has held that direct access to sodium pentobarbital is impossible, since a medical prescription is necessary in order to obtain the said product. Given that I suffer from mental illness, the Federal Court also stated that a preliminary in-depth psychiatric examination was also necessary (p. 75, paragraph 6.3.5.2. ). This should determine whether my wish to die is the expression of a psychological disorder that is open to treatment or whether it results from an autonomous, considered and sustained decision by a person who is capable of discernment (see also p. 75, paragraph 6.3.5.1. ). I hereby ask whether you would be willing to accept me as a patient, for the sole purpose of conducting such an assessment. In addition, I draw your attention to the fact that I am unlikely to commit suicide at present; I have not taken neuroleptics since November 2006.” 18. None of the doctors responded positively to his request. Some refused on the ground of lack of time and/or the necessary competence, or for ethical reasons. Others argued that the applicant ’ s illness could be treated. | This case raised the issue of whether, by virtue of the right to respect for private life, the State should have ensured that a sick person wishing to commit suicide could obtain a lethal substance (sodium pentobarbital) without a prescription, by way of derogation from the law, so as to be able to end his/her life without pain and with no risk of failure. The applicant, who had been suffering from a serious bipolar affective disorder for around twenty years and considered that, as a result, he could no longer live in a dignified manner, argued that his right to end his life in a safe and dignified manner had been violated in Switzerland as a result of the conditions that had to be met – and which he had not met – in order to be able to obtain the substance in question. |
269 | (Suspected) terrorists | 2. The applicant, a Russian national of Chechen origin, was born in 1994 and lives in Strasbourg. He is represented by Mr F. Zind, a lawyer practising in Strasbourg. 3. The French Government were represented by their Agent, Mr F. Alabrune, Director of Legal Affairs at the Ministry of Europe and Foreign Affairs. THE CIRCUMSTANCES OF THE CASEEvents in the Russian Federation as presented by the applicantBackground to applicant’s departure from his country of origin Events in the Russian Federation as presented by the applicantBackground to applicant’s departure from his country of origin Background to applicant’s departure from his country of origin Events in the Russian Federation as presented by the applicantBackground to applicant’s departure from his country of origin Background to applicant’s departure from his country of origin Background to applicant’s departure from his country of origin 4. The applicant stated that his father, who was now deceased, had been an active fighter in the Chechen guerrilla movement during the first war from 1994 to 1996. 5. In the applicant’s submission, he was arrested on 20 November 2010 on the pretext of having witnessed an armed robbery. He was taken to a police station, where he was held in custody and beaten on the hand and jaw with an iron bar by two members of the operations / research division of the Russian Ministry of Internal Affairs Directorate General for the Southern Federal Region (ORB), who were guarding him, and he still bears the scars. The applicant was asked to infiltrate the rebels in order to pass on information to the authorities and was told that, if he failed to do so, violence would be used against his family. Despite these threats, the applicant did not make contact with the rebels and was forced to stop going to school. 6. In May 2011 he was arrested a second time by members of the ORB, then taken to a barracks where he was interrogated about his infiltration into the rebel movement, while being insulted and beaten up. Upon his release, his family hid him and obtained a Russian “external passport” in his name to enable him to flee. This type of passport is an identity document which allows Russian citizens to leave the country and travel abroad, as opposed to the “internal passport” which is an identity document allowing Russian citizens to travel within Russia. 7. On the day before he was to flee the country, the applicant was arrested for a third time, taken into custody, assaulted and threatened with death. He was released on the condition that he would co-operate with the authorities. 8. According to the applicant, a medical certificate was drawn up in France attesting to the physical consequences of the ill-treatment he had suffered in connection with his three arrests. 9. The applicant fled his country of origin in 2011. Before arriving in France, he transited through Poland where he left his Russian “external passport”. 10. On arriving in France the applicant was granted refugee status through a procedure described below. Fears and threats alleged to remain extant in spite of the applicant’s departure 11. In subsequent proceedings before the French courts concerning the revocation of his refugee status (see paragraphs 31 and 53 below) and the assessment of the risk he would face if returned to Russia (see paragraph 48 below), the applicant stated that the threats directed against him at the time had not ended with his departure. According to him, several members of his family were confronted by the Russian police, who were still actively interested in him. He relied on an initial witness statement attached to his application form. The witness stated that after the applicant had left Russia in 2011, the law enforcement authorities had come to his home to obtain evidence of his presence in Europe. The witness had given them the applicant’s telephone number, confirming that he was in France. 12. The Government disputed these assertions. They observed that the applicant had not provided sufficient proof of the witness’ identity and that the statement had been undated. The Government further noted that, although the applicant had indeed mentioned the events to which the witness had testified, during his interview by video-link on 19 May 2015 with an official of the French Office for the Protection of Refugees and Stateless Persons (OFPRA) in connection with the revocation of his refugee status (see paragraph 27 below), his statements had remained very imprecise. Lastly, the Government noted that although the applicant had mentioned that members of the Russian prosecutor’s office had contacted him by telephone in France and had attempted to talk to him via Skype in mid-2012 (see paragraph 27 below), he had not mentioned any attempt to contact him since then. 13. The applicant maintained that he still belonged to a targeted group because of his family ties to Chechen fighters and his refusal to collaborate with the authorities. He also pointed out that he hailed from a region of Chechnya on the border with Ingushetia and belonged to a “teip” (clan) notorious for being a hotbed of rebel movements against the current regime. In testimony dated 7 March 2019, it was stated that the “teip” to which the applicant belonged was called “melhi” or “mialki” and that it was an opponent of the regime in Chechnya. A “teip” is based on a family group whose members are connected by blood but also by economic ties. 14. The Government contested the applicant’s assertions, stating that he had not established the reality of the risks that he claimed to be facing on account of his family’s past links with the rebels and his refusal to collaborate with the Chechen authorities. Events in FranceEvents occurring before application was lodged Events occurring before application was lodged Events occurring before application was lodged (a) Grant of refugee status to applicant 15. The applicant arrived in France in August 2011 at the age of 17. 16. He filed an asylum application on 13 March 2012 and was interviewed by a protection officer on 21 June 2012. The purpose of this kind of interview is to allow the asylum seeker to fully explain the reasons for his or her application, to supplement or rectify his or her written account and to clarify any grey areas. 17. On 31 January 2013 the OFPRA granted the applicant refugee status on account of his family ties to individuals who had supported Chechen separatists and his refusal to cooperate with the authorities. In the applicant’s submission, this recognition of his refugee status meant that the events which had caused him to flee Chechnya had been established. 18. The Government noted that it could be seen from the record of the interview of 21 June 2012 (see paragraph 16 above) that the applicant had provided very little explanation of the steps taken by his family to obtain a Russian “external passport”, particularly in view of the surveillance to which he had allegedly been subjected. On this point, the Government also referred to a subsequent interview with an OFPRA official on 19 May 2015 in the context of the revocation procedure (see paragraph 27 below). Furthermore, in its decision the OFPRA had noted that “the individual [had] stated that he himself had no links with militants and had not taken part in any action in support of the separatists” and that “he [had] not provide[d] consistent or substantiated explanations as to why he was specifically targeted”. However, the OFPRA took the view that the reasons put forward by the applicant to justify the alleged persecution could be considered established since “he [had] nevertheless expressed himself in a clear and comprehensive manner as to the arguments put forward by law enforcement officers to justify each arrest ... and [had given] details about alleged exchanges with his captors”. 19. The applicant was granted a residence card, which was valid from 14 May 2013 to 13 May 2023. (b) The applicant’s conviction in France (i) Reasons for his conviction 20. A little over nine months after obtaining refugee status, the applicant was arrested on 19 November 2013 by the French authorities on the basis of a warrant issued in an investigation into a criminal conspiracy to commit an act of terrorism. On 23 November 2013 he was placed under judicial investigation with four compatriots and remanded in custody. He was accused in particular of having travelled to a combat zone in Syria for the purpose of undergoing military training in the handling of military weapons and of having fought as a member of a jihadist group composed of Chechen, Dagestani and Ingush fighters. 21. On 16 April 2015 the Paris Criminal Court sentenced K.I. to five years’ imprisonment for participation in a criminal conspiracy to commit an act of terrorism between 1 September 2012 and 19 November 2013, in France, and also in Germany, Poland, Ukraine, Turkey and Syria, by preparing and organising his departure together with an accomplice to the combat zone in Syria, with the help of their various contacts, and by travelling to that destination. The judgment recorded that the applicant’s arrest on his return from Syria had been made possible by the interception of telephone conversations relating to a terrorist conspiracy. The Criminal Court also established that the applicant had planned to travel to Syria from March 2013 onwards, together with an accomplice who belonged to an organised Chechen network which arranged passage to Syria. The court found that the applicant had left France at the beginning of August 2013 to go to a combat zone in Syria, where he had remained from 10 or 11 August 2013 to 20 or 25 September 2013. The judgment also found that in order to travel to Syria the applicant had passed through Germany, Poland (where he obtained his Russian “external passport”), Ukraine and Turkey. 22. The Government observed that it could be seen from the judgment that the applicant had used his Russian “external passport”, which had been issued to him by the Russian authorities on 13 July 2011, to travel to Turkey and then to Syria. They also noted that the applicant had gone to Syria with one of his compatriots whom he had met in Chechnya in 2011, having renewed contact with him in France via social media. The Government further pointed out that according to the case file the applicant had planned his departure from France to Syria after his interview with the OFPRA officer on 21 June 2012 but before his refugee status had been granted. They noted that the Criminal Court had sentenced the applicant’s accomplice to imprisonment in absentia and had issued a warrant for his arrest. The judgment also mentioned that the accomplice’s father had helped him leave the combat zone and return to Chechnya, where he was still to be found at the time of that judgment. (ii) Alleged consequences of French judgment in Russia 23. The applicant submitted that after the publication of the 16 April 2015 judgment against him, the Russian authorities had renewed their pressure on members of his family who still lived in Chechnya. In that connection he produced two letters that had allegedly been written by a member of his family (see paragraphs 46 and 49 below) and a newspaper article (see paragraph 51 below). (iii) Consequences of criminal conviction in France: withdrawal of the applicant’s refugee status and order for his deportation 24. Following the applicant’s conviction, the OFPRA considered revoking the applicant’s refugee status pursuant to Article L. 711-6 2° of the Code on the Entry and Residence of Aliens and Right of Asylum (the “Immigration and Asylum Code” – see paragraph 56 below). On 19 May 2015 an OFPRA protection officer consequently interviewed the applicant. This interview was conducted by video-link as the applicant was in prison. The applicant was also invited to submit written observations. The relevant extracts from the record of the interview are as follows: “Question (‘Q’): When was your Russian domestic passport returned to you by your family? Answer (‘A’): when I was asked to present the original documents to the OFPRA, I asked my family to send it by post ..., after that my relatives got in touch with the ROVD [the District Law-Enforcement Directorate] and were able to purchase my domestic passport for 300 dollars. Q: When did they get it? A: Summer of 2013. Q: What did you need your domestic passport for as you had an external passport? A: I had applied for this passport six months before receiving it in order to present it to the OFPRA, after which I had no further use for it, but I kept it. ... Q: Didn’t your relatives ... have any problems getting your documents from the ROVD, even for money? A: You can get anything with money in Chechnya. Q: Even when you are considered persona non grata? A: It’s not difficult, my [relatives] contacted an acquaintance who knew the head of the ROVD ... who was able to recover my passport because he was no longer in the ROVD. ... Q: What are your current fears in the event of your return ...? A: I was arrested several times, I was threatened, I was asked to collaborate, I ran away, that’s why I can’t go back. Q: What news have you had about this from your family there? A: Relatives tell me that there is still surveillance, people come to ask questions. Q: People? A: They don’t introduce themselves but they wear civilian clothes; when I arrived in France, I was contacted by the public prosecutor’s office. Q: Which prosecutor’s office? A: Russian, they said they were employees of the public prosecutor’s office. Q: They came to France? A: They were able to get my French number and that’s how they contacted me. Q: When? A: When I arrived in 2011. Q: And since then? A: Mid-2012 they asked me to go with them and to talk via Skype. Q: About what? A: I don’t know, I didn’t get in touch. ... Q: Have you had any political, associative or religious involvement in the Chechen community in France? A: No, I don’t know many people, I don’t have many contacts and I’ve only been here a short time. Q: Do you still have contacts with Chechnya? A: With my relatives, yes, by phone. Q: Any contact with the Russian, Chechen authorities? A: No, no contact.” 25. On 18 November 2015 the prefect of Essonne issued a deportation order against the applicant on the basis of the serious threat that K.I. represented for public safety (see paragraph 24 above) and further set directions as to the destination country. 26. On 14 January 2016 the applicant lodged an appeal with the Versailles Administrative Court seeking to have the deportation order of 18 November 2015 annulled (see paragraph 25 above). 27. On 23 June 2016 the OFPRA revoked K.I.’s refugee status under Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 below) on the grounds that he had been convicted with final effect in France for a terrorism offence and that his presence in France constituted a serious threat to society. The OFPRA found, in particular, that it was clear from the reasoning of the judgment of 16 April 2015 that, between 1 September 2012 and 19 November 2013, the applicant had participated, via a transnational network linked to the Chechen Islamist movement with branches in several European countries and in France, in fundraising for militant groups in Syria, and that, once he had arrived in that country, he had been supported, armed and trained. The OFPRA also found that he had taken up arms in the context of a radical religious commitment described by the applicant as “Salafist”. The applicant submitted that it could be seen from the record of his OFPRA interview on 19 May 2015 (see paragraph 24 above) that he had not been asked about his beliefs, his state of mind, any possible regrets or his religious practice. 28. On 14 December 2016 K.I. lodged an appeal with the National Asylum Court (CNDA) seeking the annulment of the OFPRA’s decision of 23 June 2016 (see paragraph 27 above). In its defence, the OFPRA submitted that this appeal should be dismissed. It argued, primarily, that the exclusion clause provided for in Article 1(F)(a) of the Geneva Convention should be applied to the applicant on the grounds that the actions attributable to the armed group that he had joined in Syria, at the time of the military offensive known as “operation coastal liberation” in August 2013, were comparable to crimes against humanity and war crimes, and that the acts of terrorism for which he had been convicted in France could be characterised as acts contrary to the purposes and principles of the United Nations within the meaning of paragraph (c) of that Article. In the alternative, the OFPRA argued that his presence in France constituted a serious threat to State security and to society within the meaning of Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 below). 29. In a judgment of 7 March 2017 the Versailles Administrative Court annulled the decision specifying Russia as the country of destination (see paragraph 25 above) on the grounds, firstly, that it contained insufficient reasoning, particularly with regard to the risks of inhuman or degrading treatment to which the applicant could be exposed if he were returned to his country of origin and, secondly, that the applicant, who still had refugee status at the date of the impugned decision, could not therefore be legally removed to Russia. 30. Since his release from prison on 11 December 2017, the applicant has been placed under a compulsory residence order. According to him, he has been obliged to report to the police station three times a day. 31. On 11 January 2019 the CNDA confirmed the OFPRA’s decision to revoke the applicant’s protection (see paragraph 27 above). The CNDA ruled on the application of Article L. 711-6 2° of the Immigration and Asylum Code (see paragraph 56 below). In particular, it found as follows: “... 8. ... the Director General of the OFPRA revoked [the applicant’s] refugee status by a decision dated 23 June 2016. ... [This] decision also notes that it is clear from the reasoning of the judgment that the applicant had, during the period covered by the charges, taken part, within a transnational network linked to the Chechen Islamist movement, with branches in several European countries, in particular Poland and Belgium, and at several points in France, in fundraising for groups fighting in Syria, in particular Jaish Al-Muhajreen Wal Ansar (‘the army of emigrants and supporters’). Part of the funds collected were intended to finance his own departure for Syria in the company of another defendant ... which took place on 10 or 11 August 2013, and was facilitated by the same network, following meticulous and prolonged preparations ... 9. At the hearing, which was held in camera, [the applicant], while acknowledging that he had travelled to Syria in August 2013, maintained that it had been for humanitarian purposes. He acknowledged that he had gone to Poland to recover his passport, which he had left there before travelling to France in August 2011 to apply for asylum when he was seventeen years old. Without explaining in detail which Polish office he had gone to in order to obtain this document, he told the court that he had needed his passport in order to travel to Turkey and from there to Syria and to be able to move more freely. He then made confusing and insincere statements about the conditions of his entry into Syrian territory to join the Ansar Al Sham group, composed of Chechen, Dagestani and Ingush fighters, which was part of the jihadist conglomeration operating in Syria at the time and led by Aslan Alievitch Sigaouri, known as Djambulat or Khalid-Chechen. In the course of the judicial proceedings, the applicant stated that it was the same Djambulat who had picked him up at the Turkish-Syrian border. He confirmed his links with the Chechen leader, as he had already stated during his judicial hearings, indicating in particular that Djambulat knew the father of the other young jihadist accompanying him, as they came from the same village. [The applicant] thus stated that he had been easily accepted by the other fighters as a result. ... 10. Secondly, in addition to the seriousness of the offences constituting acts of terrorism, as highlighted by the [the applicant’s] criminal conviction handed down in France after he had been recognised as a refugee, the regrets he expressed about those misdeeds appeared to be spurious, since, as already stated, he had attempted to conceal both the real circumstances that had led to his departure for Syria and the activities in which he had engaged after his arrival there. The criminal judgment in his file thus clearly highlights the ideological motivations behind his journey and, in particular, his desire to wage armed jihad. During the court proceedings, his aunt also indicated that he had begun to radicalise his religious practice a year after his arrival in France and that he was taking Arabic lessons several times a day ... Consequently, the nature and seriousness of the acts for which he was convicted and all the elements relating to his career since his arrival in France lead to the conclusion that his presence now constitutes a serious threat to society within the meaning of Article L. 711-6, 2° of the Immigration and Asylum Code. Consequently, [the applicant] cannot validly argue that the Director General of the OFPRA wrongly revoked his refugee status pursuant to the provisions of Article L. 711-6, 2° of the above-mentioned Immigration and Asylum Code or request, as a result, that he continue to be recognised as a refugee ...” Events occurring after the application was lodged with the Court 32. On 25 January 2019 the applicant asked the Court to indicate an interim measure, under Rule 39 of its Rules of Court, to stop the French Government from deporting him to Russia. 33. On 28 January 2019 the duty judge decided to grant the applicant’s request for an interim measure on a temporary basis until 4 February 2019 and to ask the Government, in accordance with Rule 54 § 2 (a), to provide information. This information related to whether there was a new decision determining the destination country, to the timetable for his removal to Russia and to the consideration by the domestic authorities of the risks of treatment contrary to Article 3 of the Convention in the event of his return to his country of origin. 34. On 28 January 2019, while still under a compulsory residence order, the applicant was arrested. The prefect of Seine-Maritime issued an order for his placement in the Lille Lesquin administrative detention centre in order to ensure the enforcement of the deportation order. The applicant was notified of this order at 9.15 a.m. He was placed in a “terrorism” wing in the centre. 35. On the same day, the prefect of Seine-Maritime wrote to the Russian ambassador in France to request that a consular laissez-passer be issued to the applicant. In this letter, she pointed out that the embassy had already been sent a request on 26 October 2017, by the prefect of Meurthe-et-Moselle, to identify the person concerned, together with a comprehensive file. 36. On 30 January 2019 the Government replied to the duty judge’s request for information. They stated that, in the absence of a decision on the country of destination, it was legally impossible to remove the applicant. The risk of treatment contrary to Article 3 of the Convention would be assessed by the domestic authorities when adopting the decision and that, in any event, it would be possible to be bring proceedings in the Administrative Court for interim relief or annulment. The applicant, to whom this information was notified, emphasised that his removal had necessarily been scheduled, as placement in administrative detention was only possible under the first paragraph of article L. 554-1 of the Immigration and Asylum Code “for the duration strictly necessary [for] departure”. He also pointed out that an appeal against a decision determining the country of destination did not have suspensive effect (see paragraph 69 below). 37. On 30 January 2019 the Liberties and Detention Judge of the Lille tribunal de grande instance ordered the extension of the applicant’s detention for a period of twenty-eight days and the order was upheld by the Douai Court of Appeal on 1 February 2019. 38. On 4 February 2019 the Court’s duty judge decided to discontinue the application of Rule 39, in the light of the information supplied by the parties (see paragraph 36 above), and informed the applicant that his request was premature because there was no enforceable decision on his removal, the deportation order not yet being accompanied by directions as to the destination country. 39. On 25 February 2019 the prefect of Seine-Maritime set directions determining the Russian Federation as the destination country, or any country to which the applicant would be legally admitted. The decision stated that the applicant had claimed that he did not wish to return to Russia because his life was in danger there, but that he had not provided any evidence to establish that he faced a real and serious personal risk of being exposed to treatment in breach of Article 3 of the Convention. 40. On 27 February 2019 the applicant filed a fresh request for an interim measure with the Court. On the same day, the duty judge decided to temporarily apply Rule 39 again, up to and including 8 March 2019. 41. On 1 March 2019 the urgent applications judge of the Lille Administrative Court dismissed an urgent application lodged by the applicant on 27 February 2019, under Article L. 521-2 of the Code of Administrative Justice (urgent applications for the protection of a fundamental freedom), seeking a stay of execution of the order of 25 February 2019 (see paragraph 39 above). The urgent applications judge held that the condition of urgency had not been met in so far as the Court had indicated to the Government that the applicant should not be removed before 8 March 2019. The judge added that, in any event, the Russian consulate had not yet issued a consular laissez-passer for the purposes of enforcing his removal. 42. On 5 March 2019 the Government replied to the duty judge’s request for information. They stated that the applicant’s request for interim measures was premature in that, despite the country of destination being determined by the order of 25 February 2019 (see paragraph 39 above), the Russian authorities had not yet agreed to readmit the applicant to their country. 43. In an e-mail of 7 March 2019, which was forwarded to the Court by the applicant, one of his relatives alerted his lawyer to the fact that members of his family had been summoned the previous day by the authorities to the Grozny police station, where officers of the Federal Security Service of the Russian Federation (FSB) had questioned them about his whereabouts. The officers had apparently explained their presence by the fact that the French authorities had asked their Russian counterparts to “fetch” the applicant. The Government noted that the applicant had not shown that he was connected to the author of the e-mail and had not provided any information about his or her identity. 44. On 8 March 2019, in the light of the information provided by the parties, the duty judge decided to extend the application of Rule 39 while the application was being examined by the Court. 45. On 21 March 2019 the legal aid board of the Conseil d’État awarded legal aid to the applicant in connection with his appeal against the CNDA’s decision of 11 January 2019 concerning the revocation of his refugee status (see paragraph 31 above). 46. According to a witness statement written by a member of his family and appended by the applicant to the application form received by the Court on 28 March 2019, Chechen law-enforcement officers had visited the witness’s home on several occasions since the applicant’s conviction in France in order to inquire about his possible return to Chechnya (see paragraph 23 above). The Government noted that the letter was undated and that the applicant had not shown any connection to its author. 47. On 30 April 2019 the Liberties and Detention Judge of the Paris tribunal de grande instance extended the applicant’s administrative detention for a further month. The judge found that the Russian consular authorities had recognised the applicant as one of their nationals, that a consular laissez-passer had been issued to him for the period from 12 April to 12 May 2019 and that the prefecture had, on 24 April 2019, requested a flight to the Russian Federation for 11 May 2019 at the latest. 48. On 16 May 2019 the Lille Administrative Court dismissed the applicant’s appeal against the directions of 25 February 2019 specifying Russia as the destination country (see paragraph 39 above) on the following grounds: “6. ... However, [the applicant’s] refugee status was revoked by a decision of the same office dated 23 June 2016, confirmed by a decision of the National Asylum Court on 11 January 2019. [The applicant] was convicted by the Paris Criminal Court for acts committed as a result of his involvement with and support for a group of Chechen Islamist fighters in Syria. 7. It is for the applicant to adduce evidence to show that there are substantial grounds for believing that he would be exposed to a real risk of being subjected to treatment contrary to Article 3 of the Convention if returned to his country. ... 8. In the present case, [the applicant] entered France in 2011 and he no longer appears to have – and thus has not demonstrated – links with persons belonging to a group considered to be at risk in Chechnya. However, the report of the Swiss refugee aid organisation of 13 May 2016 on the human rights situation in Chechnya shows that individuals who have a link with insurgents, even if it goes back a long time, are considered to be at risk, that persons who are returned to Chechnya face an acute risk if they have previously been convicted there – which is not the case of the applicant – and that, lastly, Salafism is prohibited and persons linked to the Islamic State, acting on Chechen territory, are particularly liable to arrest. However, a more recent report of August 2018 by the European Asylum Support Office (EASO) notes that those returning from Syria are monitored on their return by the Russian authorities but that the Chechen authorities have set up reception programmes for women and children but also for some fighters repatriated from Syria. 9. [The applicant], in order to show the real and personal risks he would face in the event of his return, confines himself to producing the testimony of a person whom he presents as his grandmother, but without proving that family relationship. He has also appended an e-mail from a person he claims to be his cousin, but whose identity he has not proven, reporting what his grandmother and his aunt said. Moreover, these testimonies only attest to the fact that the Russian intelligence services had enquired about the applicant’s return. However, there is no evidence that the applicant, who used his Russian passport to reach Turkey and the Syrian combat zone, is wanted or has been charged in his country. It follows from the foregoing that, while it is possible that [the applicant] has been identified as being part of a group that is under surveillance in his country, he has not demonstrated, in the proceedings to date, that he would be subjected to ill-treatment of a real and personal nature if he is returned to that country. Consequently, the ground of appeal alleging an error of assessment must be rejected. Similarly, it does not follow from the foregoing, nor from the terms of the decision, that the administrative authority did not carry out a thorough examination of the applicant’s personal situation ...” 49. In a second statement (see paragraph 23 above) sent by the applicant to the Court on 3 January 2020, the witness in question claimed that since the applicant had been imprisoned in France, ORB agents working for the regime in Chechnya had visited his home. In this regard, he stated that in 2014-2015 two police officers had come to his home to ask him questions about the applicant. They had allegedly accused the witness of complicity in terrorism for having sent money to the applicant in October 2013 and had threatened him with prosecution on that account. The witness further stated that around June 2017, six months before the applicant’s release, two police officers had come to his home to inform him that his extradition would be requested. The witness further stated that he and a relative had been summoned at the end of February 2019 to the District Security Directorate in the city of Grozny, where an agent of the Federal Security Service of the Russian Federation (FSB) had made it clear to them that the applicant would be imprisoned as soon as he arrived on Russian soil. In addition, the Chechen police officers had questioned them about the applicant’s activities since his release from prison, his contacts and his possible plans to return to Russia. The witness also reported that a Chechen who had refugee status in Germany and who was allegedly one of the applicant’s friends had been arrested and imprisoned as soon as he arrived in Russia after going there to get married. 50. The Government noted that the statement sent to the Court on 3 January 2020 was undated. 51. The applicant also produced a newspaper article reporting on his friend’s trial (see paragraph 49 above) and stating that his confession had been obtained under torture. The Government noted that the newspaper article did not mention that other persons had been involved and that the applicant had not provided any explanation about his connection with the person whom he presented as one of his friends (see paragraph 49 above). 52. On 26 May 2020 the prefect of Dordogne issued a compulsory residence order against the applicant with a requirement to report to the police station three times a day. 53. On 29 July 2020 the Conseil d’État, under Article L. 822 1 of the Code of Administrative Justice (see paragraph 70 below) dismissed the applicant’s appeal against the decision of the CNDA of 11 January 2019 upholding the OFPRA’s decision to revoke his refugee status (see paragraph 31 above). In seeking the annulment of that decision, the applicant had alleged that it was vitiated by an initial error of law in so far as the CNDA had relied on the provisions of Article L. 711-6 of the Immigration and Asylum Code, which incorrectly transposed Directive 2011/95/EU (see paragraph 73 below) “by equating the loss of refugee status with the fact of no longer being a refugee”, and by a second error of law in so far as the CNDA had ruled that the application of Article L. 711-6 of the Immigration and Asylum Code meant both that his refugee status was withdrawn and that he was no longer a refugee (see in this connection the case-law of the Court of Justice of the European Union (CJEU) cited in paragraphs 74 to 76 below and that of the Conseil d’État cited in paragraphs 61 and 62 below). In his submissions in respect of the decision of 29 July 2020, the public rapporteur before the Conseil d’État stated the following on the relevant ground of appeal: “Contrary to what is maintained in the additional observations, the court did not fail in its judicial duty or commit an error of law with regard to this case-law, which only prohibits it, when it hears an appeal against a measure revoking refugee status taken on the basis of Article L. 711-6 of the Immigration and Asylum Code, from automatically deciding that the applicant is no longer a refugee on the basis of Article L. 711-4 of the same Code. That is not what it did, although the OFPRA had asked it to do so. Although in its reasoning it awkwardly states, in fine, that [the applicant] is not justified in asking that he should still be regarded as a refugee, this is a defect that is not repeated either under the other grounds, which do not mention Article L. 711-4 at any point, or in the operative part, which simply rejects the appeal. The applicant can rest assured that he is still a refugee, and this observation remains valid without it being necessary to allow the appeal.” 54. The Government explained that the applicant, who was still under a compulsory residence order, had been granted accommodation and financial support by the State. 55. The applicant alleged that he only had two close relatives still in Chechnya and that the male members of his family had either died or were beneficiaries of international protection in Europe. RELEVANT LEGAL FRAMEWORK AND PRACTICEDOMESTIC LAW AND PRACTICEDomestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code DOMESTIC LAW AND PRACTICEDomestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code Domestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code DOMESTIC LAW AND PRACTICEDomestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code Domestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code Domestic law on cessation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code (a) Legislation 56. The Code on the Entry and Residence of Aliens and Right of Asylum (the “Immigration and Asylum Code”), as then applicable, read as follows: Article L. 513-2 “Where a deportation or removal order is in force against an alien, directions shall be given for his or her removal: 1 o To a country of which he or she is a national, save where the French authority for the protection of refugees and stateless persons or the National Asylum Court has granted him or her refugee status or subsidiary protection, or where his or her asylum application is still pending; 2 o Or, pursuant to a European Communities or bilateral readmission agreement or arrangement, to the country which has issued the alien with a currently valid travel document; 3 o Or, with the alien’s agreement, to any country to which he or she may be legally admitted. An alien may not be removed to a country if he or she has shown that his or her life or freedom would be threatened there, or that he or she would be exposed there to treatment contrary to Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.” Article L. 711-1 “ Recognition as a refugee shall be accorded to any person who is persecuted on account of his or her activities in furtherance of freedom and to any person in respect of whom the Office of the United Nations High Commissioner for Refugees exercises its mandate under the terms of Articles 6 and 7 of its Statute as adopted by the United Nations General Assembly on 14 December 1950, or who meets the criteria laid down in Article 1 of the Geneva Convention of 28 July 1951 relating to the Status of Refugees. Such persons shall be governed by the applicable provisions concerning refugees laid down in the above-mentioned Geneva Convention.” Article L. 711-4 “... The authority [for the protection of refugees and stateless persons] may also revoke refugee status, at any time, of its own motion or at the request of the administrative authorities, where: ... 3 o The refugee must, in view of circumstances arising after this status was granted, be excluded from such status pursuant to Article 1, sections D, E or F, of the Geneva Convention of 28 July 1951, cited above.” Article L. 711-6 “A person’s refugee status may be denied or revoked: 1 o Where there are serious reasons for considering that the person’s presence in France constitutes a serious threat to the security of the country; 2 o The person concerned has been convicted in France by a final judgment of a serious crime ( crime ), or for a lesser offence ( délit ) constituting an act of terrorism or punishable by ten years’ imprisonment, and his or her presence constitutes a serious threat to society.” 57. Under Article L. 724 ‑ 1 of the Immigration and Asylum Code, the OFPRA informs in writing the person in respect of whom it envisages revoking refugee status pursuant to Article L. 711 ‑ 6 of that Code and sets out the grounds for initiating that procedure. In a judgment of 19 June 2020 (no. 425213), the Conseil d’État decided that the OFPRA was not required, in the context of the administrative proceedings, to provide the person concerned with all the preparatory documents relating to its decision before withdrawing the refugee status. The person concerned is entitled to submit written observations and the OFPRA may, if it considers it necessary, conduct an interview (Article L. 724 ‑ 2 of the Immigration and Asylum Code). The OFPRA’s decision, for which reasons must be given in fact and in law, is notified in writing to the person concerned (Article L. 724 ‑ 3 of the Immigration and Asylum Code). 58. Under Article L. 731 ‑ 2 of the Immigration and Asylum Code, the CNDA examines any appeal lodged against the OFPRA’s decision pursuant to Article L. 711 ‑ 6 of that Code. An appeal must be lodged within one month from the notification of the OFPRA’s decision. 59. In a judgment of 19 June 2020 (no. 425213), the Conseil d’État held that it was the role of the CNDA not to assess the legality of the OFPRA’s decision referred to it, but rather to give its own ruling on the person’s right to retain refugee status in the light of all the factual circumstances known to the court at the time of its ruling. 60. The CNDA’s decision may be appealed against on points of law to the Conseil d’État. The one-month time-limit for that purpose shall run from the time of the notification of the CNDA’s decision. (b) Domestic case-law on the cessation of refugee status (i) Case-law of the Conseil d’État 61. Under European Union (EU) law, member States may, in certain conditions, revoke the status granted to a refugee by a governmental authority. The consequences of such revocation gave rise to a judgment of 14 May 2019 of the CJEU as set out in paragraph 76 below. In judgment no. 416032 of 19 June 2020 concerning the revocation of refugee status under Article L. 711 ‑ 6 of the Immigration and Asylum Code, the Conseil d’État, ruling in line with the CJEU’s judgment, found as follows: “... 6. The provisions of Article L. 711 6 of the Code on the Entry and Residence of Aliens and Right of Asylum must be interpreted in accordance with the objectives of Directive 2011/95/EU of 13 December 2011, objectives which secure its transposition in domestic law and seek to ensure, in compliance with the Geneva Convention of 28 July 1951 and the Protocol signed in New York on 31 January 1967, that all member States apply common criteria for the identification of persons in need of international protection and that a minimum level of benefits is accorded to such persons in all the member States. It follows from Article 14(4) and (5) of that Directive, as interpreted by the Court of Justice of the European Union in its judgment of 14 May 2019 in cases C-391/16, C-77/17 and C-78/17, that the ‘revocation’ of refugee status or the refusal to grant it, as provided in those provisions, cannot have the effect of depriving the third-country national or stateless person concerned, who qualifies as a refugee within the meaning of Article 1(A) of the Geneva Convention, of his or her recognition as such. Furthermore, Article 14(6) of that Directive must be interpreted as meaning that a member State which avails itself of the options provided for in Article 14(4) and (5) of that Directive must grant to a refugee falling within one of the situations referred to in the latter provisions, and who is in the territory of that member State, at least the benefit of the rights and protections enshrined in the Geneva Convention to which Article 14(6) expressly refers, in particular the protection against refoulement to a country where his or her life or freedom would be threatened, and any rights under that Convention of which the enjoyment does not require lawful residence. 7. It follows from the foregoing that the provisions of Article L. 711-6 of the Code on the Entry and Residence of Aliens and the Right of Asylum only allow the OFPRA to refuse to grant, or to terminate, the legal and administrative protection of a refugee, within the limits laid down by Article 33 § 1 of the Geneva Convention and Article 14(6) of the Directive of 13 December 2011, where there are serious reasons for considering that the person’s presence in France constitutes a serious threat to State security or where the person has been convicted in France by a final judgment of either a serious offence ( crime ) or a lesser offence ( délit ) constituting an act of terrorism or punishable by ten years’ imprisonment, and where his or her presence constitutes a serious threat to society. The loss of refugee status resulting from the application of Article L. 711-6 will therefore have no bearing on the fact that the person is a refugee, and her or she will continue to be recognised as such in the event that the OFPRA and, where applicable, the Asylum Court, applies Article L. 711-6, within the confines of Article 33 § 1 of the Geneva Convention and Article 14(6) of the Directive of 13 December 2011. It follows that there was no error of law in the National Asylum Court’s ruling that Article L. 711-6 of the above-mentioned Code was not intended to add new exclusion clauses and did not, in those circumstances, disregard either the Geneva Convention or the objectives of the Directive of 13 December 2011 ...” 62. In a judgment of 19 June 2020 (no. 428140), the Conseil d’État found that Article L. 711 ‑ 6 of the Immigration and Asylum Code (see paragraph 56 above) provided as follows: “... the possibility of refusing or revoking refugee status, this having no bearing on whether the person concerned is or remains a refugee as long as he or she meets the conditions, must meet two cumulative requirements. It is incumbent upon the OFPRA and, in the event of an appeal, the National Asylum Court, to verify whether the person concerned has been convicted of one of the offences referred to in the above-mentioned provisions and also to assess whether his or her presence on French territory is such as to represent, on the date of their decision, a serious threat to society within the meaning of those provisions, i.e. whether it is such as to affect one of the fundamental interests of society, taking into account the criminal offence committed – which alone cannot legally justify a decision to refuse or revoke refugee status – and the circumstances in which the offence was committed, but also the time that has elapsed and the whole conduct of the person concerned since then, together with any relevant circumstances on the date of the ruling ...” (ii) Opinions issued by the CNDA under Article L. 731-3 of the Immigration and Asylum Code 63. The CNDA may be called upon under Article L. 731 ‑ 3 of the Immigration and Asylum Code to issue an opinion on the maintaining or annulment of a deportation or removal order against an applicant who has been deprived of refugee status on the ground that his or her presence in France constitutes a serious threat to the security of the State (Article L. 711 ‑ 6 of the Immigration and Asylum Code). Article L. 731-3 of the Code provides as follows: “The National Asylum Court shall examine any applications that are addressed to it by refugees in the event that measures have been taken against them in accordance with Articles 31, 32 and 33 of the Geneva Convention of 28 July 1951 on the status of refugees and shall issue an opinion as to the maintaining or annulment of those measures. In such matters the application shall suspend the enforcement of the measure concerned. The right to lodge such an application shall be exercised within a period of one week subject to the conditions laid down in a decree after consultation of the Conseil d’État .” 64. An application for an opinion under Article L. 731 ‑ 3 of the Immigration and Asylum Code must be lodged with the CNDA within one week from the notification of the measure concerned. The CNDA must deliver a reasoned opinion. 65. In an opinion of 14 February 2020 concerning a decision of 16 January 2020 in which the prefect of Haute-Garonne had decided on the removal of a Russian national to the country of which he was a national or any other State where he would be legally admitted, the CNDA found as follows: “5. Pursuant to Article L. 711-4 of the said Code, refugee status ends when the person concerned falls under one of the cessation clauses in Article 1C of the Geneva Convention, one of the exclusion clauses in Article F of the same Article, or where recognition of this status has been obtained by fraud. Under paragraph 2 of Article L. 711-6 of the said Code, in the version applied [to the applicant], the ‘refugee status’ of any person convicted by a final judgment in France either for a serious offence ( crime ) or for a lesser offence ( délit ) constituting an act of terrorism or punishable by ten years’ imprisonment, and whose presence constitutes a serious threat to society, may be terminated. These provisions were adopted to ensure the transposition into French law of Article 14(4) and (5) of Directive 2011/95/EU of 13 December 2011, which provide for the possibility for member States to revoke or refuse refugee status where there are reasonable grounds for regarding him or her as a danger to the security of the State in which he or she is present, or where he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that State. Paragraph 6 of the same Article provides that persons to whom paragraphs 4 and 5 apply are entitled to the rights provided for in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention or similar rights, provided they are in the State in question. It follows from the provisions of Article 14, as interpreted by the Court of Justice of the European Union in the Grand Chamber judgment of 14 May 2019 (Joined Cases C-391/16, C-77/17 and C-78/17), that although the Union is not a party to the Geneva Convention, Article 78(1) of the Treaty on the Functioning of the European Union and Article 18 of the Charter of Fundamental Rights of the European Union nonetheless require it to comply with the rules of that Convention. In this connection, Article 2(e) of Directive 2011/95/EU defines ‘refugee status’ as ‘the recognition by a Member State [of a third-country national or a stateless person] as a refugee’. As can be seen from recital 21 of that Directive, such recognition is declaratory and not constitutive of being a refugee for the purposes of Article 2(d) of Directive 2011/95/EU and Article 1(A) of the Geneva Convention. Thus, persons deprived of their refugee status pursuant to Article 14(4) and (5) of Directive 2011/95/EU are, or continue to be, refugees within the meaning of Article 1(A)(2) of the Geneva Convention and consequently continue to satisfy the material conditions for being a refugee, namely the existence of a well-founded fear of persecution in their country of origin. 6. In the present case it is apparent, in particular, from paragraph 9 of the Court’s above-mentioned decision of 26 July 2019 that the recognition of the [applicant] as a refugee, and thus the existence of a well-founded fear of persecution in the event of his return to the Russian Federation on account of his political opinions, was not disputed by the OFPRA. Before the Court the fact that the applicant was a refugee was not called into question on the basis of one of the cessation clauses provided for in Article 1(C) of the Geneva Convention, or on the basis of one of the exclusion clauses provided for in Article 1(F) of that Convention, or on the basis that [his] recognition as a refugee had been obtained by fraud. Thus, [the applicant] is a refugee within the meaning and for the purposes of the afore-mentioned Article L. 731 3 of the Immigration and Asylum Code ... 13. In the present case, [the applicant] is a refugee who, in that capacity, has demonstrated a well-founded fear of being persecuted for political reasons if he were to return to the Russian Federation, his country of nationality. Thus, the prefect’s decision of 16 January 2020 ..., in so far as it directs that [the applicant] be removed to the country of which he is a national, is at odds with France’s obligations arising from the right to protection of refugees against refoulement, as guaranteed by Article 33 of the Geneva Convention, Articles 4 and 19(2) of the EU Charter of Fundamental Rights and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950.” 66. In an opinion of 16 December 2020 concerning a decision of 20 October 2020 in which the prefect of Hauts ‑ de ‑ Seine decided to remove a Sri Lankan national from France to the country of which he was a national or any other country to which he would be legally admitted, the CNDA found as follows: “9. Accordingly, although [the applicant’s] refugee status was withdrawn by a decision of the OFPRA that has become final pursuant to Article L. 711-6, 2°, of the Immigration and Asylum Code, this withdrawal has no bearing on the fact that he remains a refugee and continues to enjoy the rights arising therefrom. The OFPRA’s decision of 29 May 2020, which terminated [the applicant’s] refugee status, pointed out his commitment to the Tamil cause within the Liberation Tigers of Tamil Eelam (LTTE) and indicated that his fears in the event of his return to his country were still present and that there was no need to examine the application of Article L. 711-4, first paragraph, of the Immigration and Asylum Code, relating to the conditions of cessation of international protection, in particular owing to a change in the circumstances on the basis of which protection had been granted. [The applicant] is a refugee who, as such, has a well-founded fear of being persecuted on political grounds if returned to Sri Lanka, his country of nationality. Consequently, the decision of 20 October 2020 by the prefect of Hauts ‑ de ‑ Seine, in so far as it directs his removal to his country of nationality, is at odds with France’s obligations arising from the right to protection of refugees against refoulement, as guaranteed by Article 33 of the Geneva Convention, Articles 4 and 19(2) of the EU Charter of Fundamental Rights and Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 ...” Domestic law on deportation and appeals against a deportation order 67. Deportation ( expulsion ) is a measure taken by the Minister of the Interior or the prefect by which an alien is ordered to leave France because his or her presence in the country constitutes a serious threat to public order ( ordre public ), under Article L. 521 ‑ 1 of the Immigration and Asylum Code. The competent authority, for the purposes of such order, must establish the existence of a serious threat having regard to the alien’s conduct and the objective risks that he or she represents for public order ( Conseil d’État, decision of 7 May 2015, no. 389959). 68. Certain categories of aliens who have particular links with France in principle enjoy a degree of protection from deportation (Article L. 521 ‑ 3 of the Immigration and Asylum Code). This protection is removed, however, where the alien’s conduct “is such as to harm the fundamental interests of the State, or is related to acts of terrorism, or expressly and deliberately encourages acts of discrimination, hatred or violence against a given person or group” (same Article). 69. Further details on the deportation procedure, the remedies against a deportation order and the directions as to destination country can be found in paragraphs 39 to 42 of the A.S. v. France judgment (no. 46240/15, 19 April 2018). Non-admission of appeal on points of law by the Conseil d’État 70. Article L. 822 ‑ 1 of the Code on Administrative Courts provided, at the time, as follows: “Appeals on points of law to the Conseil d’État must follow the preliminary admission procedure. Admission shall be refused by a court decision if the appeal on points of law is inadmissible or if there is no serious ground of appeal.” EUROPEAN UNION LAW AND CJEU CASE-LAWEU Charter of Fundamental Rights EU Charter of Fundamental Rights EU Charter of Fundamental Rights 71. The relevant Articles of the EU Charter of Fundamental Rights (the “Charter”) read as follows: Article 18 “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.” Article 19 “... 2. No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.” Treaty on the Functioning of the European Union 72. Article 78(1 ) of the Treaty on the Functioning of the European Union reads as follows: “The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.” Directive 2011/95/EU of the European Parliament and of the Council 73. The relevant provisions of Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (recast) (OJEU L 337 p. 9) read as follows: Article 14 – Revocation of, ending of or refusal to renew refugee status “... 4. Member States may revoke, end or refuse to renew the status granted to a refugee by a governmental, administrative, judicial or quasi-judicial body, when: (a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present; (b) he or she, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that Member State. ... 6. Persons to whom paragraphs 4 or 5 apply are entitled to rights set out in or similar to those set out in Articles 3, 4, 16, 22, 31, 32 and 33 of the Geneva Convention in so far as they are present in the Member State.” Relevant CJEU case-law 74. The CJEU has found that, as provided in recital 3 of Directive 2011/95, the Common European Asylum System, encompassing that Directive, is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted (see, to this effect, the judgments of 21 December 2011, N. S. and others, C ‑ 411/10 and C ‑ 493/10, EU:C:2011:865, paragraph 75, and of 1 March 2016, Alo and Osso, C ‑ 443/14 and C ‑ 444/14, EU:C:2016:127, paragraph 30). 75. In the Ahmed judgment of 13 September 2018 (C ‑ 369/17, EU: C:2018:713), the CJEU found, at paragraph 51, as follows: “Like the grounds for exclusion from refugee status, the purpose underlying the grounds for exclusion from subsidiary protection is to exclude from subsidiary protection status persons who are deemed to be undeserving of the protection which that status entails and to maintain the credibility of the Common European Asylum System, which includes both the approximation of rules on the recognition of refugees and the content of refugee status and measures on subsidiary forms of protection, offering an appropriate status to any person in need of such protection ...” 76. In its Grand Chamber judgment M and others v. Commissaire général aux réfugiés et aux apatrides (14 May 2019, C ‑ 391/16, C ‑ 77/17 and C ‑ 78/17, EU: C:2019:403), the CJEU found in paragraph 92 that the fact of being a “refugee” was not dependent on the formal recognition of that fact through the granting of “refugee status”. It went on to explain in paragraph 94 that member States were precluded from removing, expelling or extraditing a refugee who had lost status under Article 14(4) of Directive 2011/95 where there were substantial grounds for believing that he or she would face a genuine risk, in the country of destination, of being subjected to treatment prohibited by Articles 4 and 19 of the Charter. In that eventuality the member State concerned could not derogate from the principle of non-refoulement (paragraph 95). Lastly, the CJEU found in paragraph 99 that where Article 14(4) of Directive 2011/95 applied, the third-country nationals concerned would be denied refugee status and thus all the rights and benefits set out in Chapter VII of that Directive, those rights and benefits being associated with that status. However, in so far as they continued to meet the asylum conditions, the people concerned would continue to be refugees and, as explicitly stated in Article 14(6) of that Directive, would be entitled to a certain number of rights laid down in the Geneva Convention. 77. That CJEU judgment was delivered two days before the judgment of 16 May 2019 in which the Lille Administrative Court dismissed the applicant’s appeal against the order specifying the Russian Federation as his destination country (see paragraph 48 above). 78. In his Opinion of 21 June 2018 in the case of M v. Ministerstvo vnitra (or M and others v. Commissaire général aux réfugiés et aux apatrides, see paragraph 76 above), Advocate General Wathelet found that a systematic and teleological reading of Article 14(4) and (5) of Directive 2011/95 (see paragraph 73 above) had led him to consider that the application of those provisions did not amount to the cessation of, or exclusion from, the fact of being a refugee (paragraph 77 of his Opinion). 79. Mr Wathelet developed his reasoning as follows: “78. ... it is apparent from the general scheme of that directive that the conditions for being a refugee, on the one hand, and the grant or withdrawal of refugee status, on the other, are two distinct concepts. ... 80. Chapter III [entitled ‘Qualification for being a refugee’] includes Articles 11 and 12 of Directive 2011/95, concerning cessation and exclusion, the content of which reproduces Articles 1C and 1F of the Geneva Convention. Those provisions lay down the situations in which a third-country national or a stateless person is not entitled to be a refugee and, consequently, is excluded from the scope of the international protection under that directive and that convention. 81. Those scenarios do not cover situations, such as those at issue in the cases in the main proceedings [C-391/16 and others, see paragraph 76 above], in which a refugee constitutes a danger to the community of the country of refuge because he has committed a particularly serious non-political crime in that country. The grounds for exclusion [in the Geneva Convention] were introduced not with the aim of protecting the security or the community of the country of refuge from the present danger that a refugee may pose, but with the aim of maintaining the integrity of the system for the international protection of refugees and of preventing the benefit of that protection from enabling those who have committed certain serious crimes to escape criminal liability. [NB The first case of exclusion concerns the scenario where there are serious reasons to believe that a third-country national or stateless person has committed a serious non-political offence outside the country of refugee before being admitted there as a refugee, i.e. before the date on which the residence permit was issued on the basis of the grant of refugee status; while the second case of exclusion applies where the person has been guilty of acts contrary to the purposes and principles of the United Nations]. 82. [The] situations [where the refugee represents a threat to the society of the country of refuge because he has committed a particularly serious non-political offence in that country], however, fall within the scope of the exception to the principle of non-refoulement and Article 14(4) and (5) of Directive 2011/95. That provision is in a separate chapter, namely Chapter IV of that directive, entitled ‘Refugee status’. ... 84. In the second place, attainment of the objectives of Article 14(4) and (5) of Directive 2011/95 also presupposes that, as long as a person qualifies as a refugee, he shall continue to be a refugee and this will not be affected by the revocation of the status granted to him or by the refusal to grant such status. 85. The grounds for cessation of and exclusion from being a refugee are listed exhaustively in Articles 1C to 1F of the Geneva Convention — provisions in respect of which the Contracting States are not authorised to make reservations under Article 42(1) of that convention. Therefore, the introduction of additional grounds for cessation or exclusion in Directive 2011/95 would have undermined the objective of that directive, which is to ensure the full implementation of that convention. ... 132. For the sake of completeness, I would point out that the foregoing conclusion solely concerns the validity of Article 14(4) to (6) of Directive 2011/95, in so far as it introduces the possibility for the Member States to deprive certain refugees of the rights provided for in Chapter VII of that directive, in the light of Article 18 of the Charter and Article 78(1) TFEU. It is only on the validity in abstracto of that possibility in the light of those provisions that the Court is asked to give a ruling in the context of the present references for a preliminary ruling and, therefore, this is what the observations submitted to the Court concerned.” INTERNATIONAL MATERIALGeneva Convention of 28 July 1951 on the status of refugees Geneva Convention of 28 July 1951 on the status of refugees Geneva Convention of 28 July 1951 on the status of refugees 80. Articles 1 and 33 of the 1951 Geneva Convention provide as follows: Article 1 – Definition of the term “refugee” “A. For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who: (1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization; ... (2) As a result of events occurring before 1 January 1951 and owing to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it. ...” Article 33 – Prohibition of expulsion or return (“refoulement ”) 1. No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 81. Articles 3, 4, 16, 22, 31 and 32 are cited in paragraph 62 of the judgment in N.D. and N.T. v. Spain [GC], nos. 8675/15 and 8697/15, § 62, 13 February 2020. Council of Europe treaties on terrorism 82. The Court would refer to paragraph 99 of the judgment in A. v. the Netherlands (no. 4900/06, § 99, 20 July 2010). 83. As regards, more specifically, the Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism, signed in Riga on 22 October 2015 (ETS no. 217), as mentioned in that judgment, it came into force on 1 July 2017 in accordance with the provisions of Article 10 § 2. That Protocol was ratified by France on 12 October 2017 and by the Russian Federation on 24 January 2020. 84 As regards the Council of Europe Convention on the Prevention of Terrorism signed in Warsaw on 16 May 2005 (ETS 196), as also mentioned in the above judgment, it was opened for signature by member States, non-member States which participated in its elaboration and the EU, and for accession by other non-member States. In accordance with Article 23 § 3 it entered into force on 1 June 2007. This Convention was ratified by France on 29 April 2008 and by the Russian Federation on 19 May 2006. International documents concerning the situation in the North Caucasus region 85. Reference should be made to the international material enumerated in the judgment of M.V. and M.T. v. France (no. 17897/09, §§ 23-25, 4 September 2014) and in the decision of I.S. v. France (no. 54612/16, §§ 29 ‑ 31, 12 December 2017). 86. The material mentioned below concerns the developments that have taken place since 2018 and the situation of individuals who have been suspected or convicted of acts of terrorism. It confirms in particular that the situation in the North Caucasus region has remained very unstable on account of persistent conflicts between government forces and armed rebels of the Chechen resistance. 87. The information comes from reports by a number of international or governmental organisations (European Asylum Support Office (EASO), the Office of the Commissioner General for Refugees and Stateless Persons (CGRS-CEDOCA, Belgium, COI Unit), the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and Freedom House). 88. In a report of August 2018, “Russian Federation ‑ The Situation for Chechens in Russia” [1], the European Asylum Support Office (EASO), which is an EU agency set up in 2010 with the role of implementing the Common European Asylum System and to provide expertise on asylum matters, noted as follows: “7 Reception of Chechens returnees According to the Russian authorities, in 2016 as many as 150 000 Russians repatriated to the Russian Federation from abroad. The number of either Chechens or people from the Northern Caucasus returning to the Russian Federation in 2017 is unknown. 7.2 Treatment of returnees by authorities In a report by the German Foreign Office and cited by ACCORD, it is determined that there were in general no indications that Russian authorities systematically target Russian citizens either returning from abroad or applying for asylum. However, some specific social groups and high-profile asylum seekers were targeted and monitored by the authorities. Chechens in general were not targeted, but suspected insurgents are likely to be subject to repression upon return. In the case of voluntary returns, IOM Moscow did not receive any reports from returnees to Chechnya about any kind of problems or conflicts with local authorities upon return to Chechnya, according to information conveyed to DIS in 2014. Some sources however mention possible difficulties that Chechen returnees can encounter, even though there is a difference between non-voluntary and voluntary returnees, the latter who in general did not encounter any problems. Ekkehard Maass, Chairman of the German-Caucasian Society, have explained that the primary fear of Chechens in Germany was to be shipped back to Russia, where they could face violence and ill treatment from the authorities, for example the cases of re-education programmes for women. Former Islamic State fighters were monitored by the authorities, even though there were no official figures for male returnees. Memorial stated in its 2016 report: ‘Overall, the small stream of “returnees” is still reasonably well monitored by the Russian security services. The number of Russian nationals who have been subject to criminal proceedings as a result of travelling to fight alongside radicalised Muslims is subject to a great deal of uncertainty, ranging from 477 to 800 depending on the officials cited.’ In contrast to neighbouring Dagestan and the Russian hardline policy, the Chechen government and local activists took some steps to rehabilitate children and women returning from Syria and to a limited extent some fighters although the Chechen authorities have been said to use the process to portray themselves as pacifistic and gather intelligence about the Islamic State. The number of returned children and women to Russia was 97 as of February 2018. In general, the authorities encountered many technical and legal challenges related to the return of these persons, including the identity verification of children born in Syria or Iraq. The rehabilitation and returning process was not without potential risk for returnees from Syria, as they, their relatives or even friends might also be targeted by the Chechen authorities, according to an analysis by International Crisis Group. Nevertheless, with the tentative support from local authorities, a rehabilitation centre is to be built in Grozny to apply a more individual approach to returning women from Syria. However, women returning from Syria were allegedly required to sign a document promising to appear before a court, if charged with any criminal activity. Law enforcement agencies would make informal agreements with relatives and friends that the returnees would not be charged with a crime upon return, but despite these informal agreements there were cases of prosecution. Since 2015, there have been several high-profile cases of returnees who disappeared after their return to the Russian Federation from Europe or suffered ill treatment or otherwise were considered to be at risk after returning ... Moreover, according to a non-public country report by the German Foreign Office, quoted in a ruling by the Austrian Federal Administrative Court, Chechen returnees could potentially be targeted by the authorities in falsified penal procedures, in order to improve the crime-fighting statistics or the returnees could be suspected of having participated in militant activities.” 89. The Office of the Commissioner General for Refugees and Stateless Persons (CGRS), an independent Belgian federal body set up to provide protection to people facing a risk of persecution or serious harm on return to their country, has noted as follows [2] : “This document updates the COI Focus Tsjetsjenië. Veiligheidssituatie of 11 June 2018. Research was focussed on new developments in the period from June 2018 to 15 June 2019. The research for this report was closed on 15 June 2019. All sources indicate that since 2009, there have been no widespread and major human rights violations or violations of international humanitarian law in Chechnya. However, violence still occurs, but it is more targeted in nature and has a limited impact. All sources mention human rights violations by the Kadyrov regime and attacks by rebels. Violence by state actors primarily targets members of the rebel movement and their relatives, but is not limited to this group. Rebels mainly carry out attacks against members of the security forces. According to some sources, due to the strong control the regime exerts on society, only a limited amount of information on human rights violations and on the overall situation in Chechnya filters through. Sources report that the rebel units of the Imarat Kavkaz were side-lined almost completely in 2015 and no longer play a significant role in the region. This is due to actions of the security services as well as to the emergence of IS in the North Caucasus. A number of potential recruits of the rebel movement in Chechnya have left the region in order to join the ranks of ISIS. Rebels who stay in Chechnya are developing a limited structure of independently operating cells under the IS flag. To this day, the activities and the impact of IS units in Chechnya remain limited, but it is not clear how this may evolve in the near future. At the same time, the number of fighters going to the Middle East is decreasing sharply. According to the sources, the Chechen security forces are under the direct control of Ramzan Kadyrov, which is exceptional in the region, where security forces are usually answerable to the central federal structures. The Chechen security forces commit numerous human rights violations in a climate of impunity. The sources report illegal arrests, fabricated lawsuits, disappearances and abductions, torture during detention, extrajudicial executions and collective retaliatory actions such as burning down the houses of family members of alleged fighters. Figures about the number of violent incidents and the number of victims are scarce. According to various sources, the available figures are an underestimation but indicate a decrease of the number of victims among the security services, rebels and civilians. Since 2013, this evolution has continued almost without interruption until 2017, when an increase in the number of victims was observed. In 2018, the number of victims among the security forces decreased, while the number of victims among rebels and civilians remained more or less stable.” 90. In a public statement about the Russian Federation, concerning the Chechen Republic and other Republics of the North Caucasus, dated 11 March 2019 [3], the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted as follows: “13. The information gathered by the delegation during the visit [in November / December 2017] suggests that persons suspected of offences related to terrorism and participation in illegal armed groups are at a particularly high risk of being ill-treated, but they were not the only alleged victims ...” 91. The report “Freedom in the World 2020 – Russia” by Freedom House, of 4 March 2020 [4], states as follows: “Parts of the country, especially the North Caucasus, suffer from high levels of violence; victims include officials, Islamist insurgents, and civilians. Chechen leader Ramzan Kadyrov is accused of using abductions, torture, extrajudicial killings, and other forms of violence to maintain control. This activity sometimes occurs beyond Russian borders: Kadyrov is suspected of arranging the assassination of asylum ‑ seekers and political opponents who have fled the country.” | This case concerned a Russian national of Chechen origin who arrived in France when he was still a minor and obtained refugee status. After being convicted for a terrorism offence and on the grounds that his presence in France represented a serious threat to French society, the French Office for Refugees and Stateless Persons (OFPRA) revoked his status in July 2020 under Article L. 711-6 of the Immigration and Asylum Code and his deportation to Russia was ordered. The applicant argued that his deportation to Russia would expose him to inhuman or degrading treatment. |
322 | Obligation on States to protect the victims of trafficking | I. THE CIRCUMSTANCES OF THE CASE 5. The first and second applicants were born in 1984 and 1982 respectively and live in Vienna. The third applicant was born in 1972 and lives in Switzerland. 6. The following summary of the background of the case and the events in Austria is based on the submissions by the applicants. The account of the investigation in Austria is based on the submissions by both parties. A. Background of the case 7. The applicants are all nationals of the Philippines. The first and third applicants were recruited in 2006 and 2009 respectively by an employment agency in Manila to work as maids or au pairs in Dubai (United Arab Emirates). The second applicant travelled to Dubai in December 2008 for the same purpose, at the suggestion of the first applicant, not via an agency. All of the applicants had their passports taken away by their employers. During the course of their work in Dubai, they allege that they were subjected to ill-treatment and exploitation by their employers, who also failed to pay them their agreed wages and forced them to work extremely long hours, under the threat of further ill-treatment. 1. The first applicant 8. In late 2006 the first applicant contacted an agency in Manila in order to find a job abroad. She is a single mother with one daughter who was eight months old at the time. She signed a contract in which she agreed to work for a family in Dubai for two years, from December 2006 until December 2008. The contract also stipulated that she would be paid 700 United Arab Emirates dirhams (AED – approximately 150 euros (EUR) at that time) per month to work for eight hours each working day. Upon her arrival in Dubai the first applicant was taken to her employers, who were two sisters or sisters-in-law sharing one large residence with their families. One of them took possession of her passport. 9. For most of the initial two-year contract the first applicant was not subjected to physical abuse or direct threats of harm by her employers, and she was paid regularly. However, she had to work from 5 a.m. to midnight throughout the initial two-year period. Her duties included looking after her employers’ children, preparing meals, cleaning the house, doing the laundry and numerous other jobs around the house and garden. During the first nine months she was required to perform this work seven days per week without a single day off, and was not allowed to leave the house unsupervised. She was not allowed to have her own telephone and was only allowed to call her family in the Philippines once a month, the costs of these calls being deducted from her wages. Further, the first applicant was forbidden from speaking to any of the other workers from the Philippines in their native language. She was constantly hungry, as she was generally only given the family’s leftover food. Only when she accompanied the family to the supermarket approximately once a month was she allowed to buy some basic food for herself. 10. After approximately nine months, the first applicant faced the first punishments by her employers. She was forced to sleep on the floor when they found out that she had been talking to another employee from the Philippines in their native language. When she became ill after sleeping on the cold floor, her employers prevented her from buying medicine or contacting a doctor; instead, she had to continue working the same hours. 11. Towards the end of her two-year contract, the first applicant’s employers informed her that they wished her to stay, and offered her better pay, more days off and a telephone of her own, as well as permission to visit her family, provided that she recruited someone to take over her job while she was away. The first applicant finally agreed to extend her contract and returned to the Philippines for three months. Owing to the incentives and the prospect of improved working conditions, she asked the second applicant to take over her role in Dubai during the time she was away. 12. While the first applicant was in the Philippines, she received threats from her employers that if she did not return to Dubai to work, she would be banned from ever going back there, and the second applicant would be subjected to ill-treatment. The first applicant therefore returned to Dubai in April 2009. 13. After she returned to Dubai, she was taught how to drive. After she failed her first driving test, she was forced to pay for further lessons and tests out of her own salary, with four further driving tests costing AED 700 each, a month’s salary. While she was driving, one of her employers hit her on the shoulder on a number of occasions to force her to speed up. The employer also started to slap or hit her regularly for no or little reason. She also repeatedly threatened to let her husband hit the first applicant if she did not follow her orders or made any mistakes. 14. The first applicant accompanied her employers on trips to Europe, Australia, Singapore and Oman, where she spent significant amounts of time locked up in hotel rooms or under the close supervision of her employers. She only had to visit one embassy in person to obtain entry documents, and that was in relation to a trip to London, at which time she was ordered by her employers to lie about her work conditions. When they arrived in London, the first applicant was not allowed at any time to leave the apartment in which they were staying. 2. The second applicant 15. The second applicant was married with three young children in the Philippines. Her husband had no regular work. Because she expected better pay in Dubai, she agreed to work for the same employers as the first applicant. The employers in Dubai arranged a visiting visa for her, under false pretences. As a result of this arrangement, the second applicant did not approach the employment agency in the Philippines and did not have a written contract with her employers. Her understanding was that she would get AED 700 per month, which would be paid directly to her family in the Philippines. 16. In December 2008 the second applicant started to work in Dubai. After the first applicant returned to the Philippines for three months in January 2009 (see paragraph 11 above), the employers significantly changed their conduct towards the second applicant. They threatened not to pay her family if she made any mistakes. They refused to let her leave Dubai, including by refusing to return her passport and ordering her to repay them her travel costs and related expenses. They also told her that she would be put in prison if she ran away or went to the authorities in Dubai for help. They physically and emotionally abused her, and there was one incident when one of her employers struck her across the shoulder using significant force. She was also forced to work from around 5 or 6 a.m. until midnight or 1 a.m. the following day. 17. Between April 2009 and June 2010 the violent and threatening behaviour of the employers increased. The second applicant was punched by one of her employers on one occasion, and in another incident the employer aimed a hard slap at her face, but instead struck her across the shoulder. 3. The third applicant 18. The third applicant’s family were desperate for money to pay for crucial medical treatment for her brother. Therefore, in 2009 she contacted an employment agency in the Philippines and was offered work as a maid in Dubai. She was informed that she would be earning between AED 800 and 1,000 (approximately EUR 160 to 200 at that time) per month, roughly twice her salary in the Philippines. Upon her arrival in Dubai in 2009 she had to hand over her passport and mobile phone to someone supposedly working for the employment agency. She was told that these items would be returned to her when she finished her work in Dubai. 19. The third applicant was working for a family member of the first and second applicants’ employers. The applicants got to know each other, as the two families met every Friday. They secretly shared their experiences on these occasions. 20. The third applicant was also bound by working hours going from 6 a.m. to midnight. Her employer forced her to clean her car in the sun and in unbearable heat, and she was prohibited from going to the toilet without letting her employer know. She was only allowed to call her family in the Philippines once a month, and only in the presence of her employer. She did not receive any remuneration at all for the first three months of her employment. Afterwards, she only received approximately AED 750 per month, less than what had been agreed. On one occasion she was slapped by her employer, and on a different occasion she witnessed another employee being hit over the head. 21. When the third applicant told her employer that she wished to return to the Philippines, she was told that she would have to pay the cost of the flight and the agency fees, which her employer knew she could not afford at that point. Her employer also made it clear that, in any event, her passport would not be returned to her until she had completed at least nine months of work in Dubai. Subsequently, the third applicant was too scared to ask to leave Dubai again, owing to her fear that her employer would take her earnings from her or refuse to return her passport for an even longer period. B. Events in Austria 22. On 2 July 2010 the applicants’ employers took them along on a short holiday trip to Austria. The applicants all stayed at the same hotel in the city centre of Vienna. The applicants slept in their own, separate apartment together with the female children. The male children slept in the same apartment as their parents. As in Dubai, the applicants had to take care of all of the employers’ children and perform numerous other domestic duties. They were still required to work from approximately 5 or 6 a.m. until midnight or even later. The third applicant was regularly shouted at by her employer, for example if she failed to get all the children ready early every morning. In addition, their employers woke the first applicant up at around 2 a.m. and forced her to cook food for them. Furthermore, the first applicant was forced to carry the employers’ twenty suitcases into the hotel by herself. While the applicants were in Austria, their passports remained with their employers. In the hotel in Vienna in which the applicants were staying, they became acquainted with N., an employee at the hotel who could speak Tagalog, the first applicant’s mother tongue. 23. When the applicants accompanied their employers to a zoo one or two days after their arrival in Austria, one of the children went missing for some time. One of the employers started screaming at the first and third applicants in a manner which the applicants had not experienced before. The first applicant found the level of verbal abuse extreme, and this was a particularly distressing and humiliating experience for her. The employer threatened to beat the third applicant, and said that “something bad” would happen to her if the child was not found safe and well. By this stage, the third applicant had formed the impression that this employer, of whom she lived in a constant state of fear, was a dangerous person who might try to hurt her very badly. She had the feeling that the violence towards her was likely to escalate at any time. Therefore, she believed that something bad was going to happen to her if she remained with the family. Similarly, the first applicant believed that they could not live with their conditions of work any longer, and did not want to risk waiting to see what happened if they travelled with their employers from Vienna to London, as they were scheduled to do. The applicants therefore decided to speak to N., the Tagalog-speaking employee at the hotel, to see whether she could help them. 24. The night following the incident – that is, two or three days after their arrival in Austria – the applicants left the hotel with the help of N., who had organised a car to pick them up in a side street near the hotel and take them to a “safe place”. The applicants subsequently found support within the local Filipino community in Vienna. C. Proceedings in Austria 1. Criminal proceedings against the applicants’ employers 25. In April or May 2011, approximately nine months after they had left their employers, the applicants contacted a local NGO called “LEFÖ” for assistance in reporting their ill-treatment, abuse and exploitation to the police. LEFÖ is actively involved in the fight against trafficking in human beings in Austria. It is financed though government funds, in particular for the provision of assistance to victims of trafficking. In July 2011 the applicants decided to turn to the Austrian police and filed a criminal complaint ( Strafanzeige ) against their employers. They explained that they had been the victims of human trafficking. On 11 and 21 July and 17 August 2011, accompanied by representatives of LEFÖ, they were interviewed at length by officers from the Office to Combat Human Trafficking ( Büro für Bekämpfung des Menschenhandels ) at the Federal Office of Criminal Investigations ( Bundeskriminalamt ). In their report, the officers concluded that the offences had been committed abroad. 26. The applicants were informed that their employers had also made allegations about their conduct, alleging, inter alia, that they had stolen money and a mobile phone from them when they had fled the hotel. Those allegations were subsequently formally recognised by the Austrian authorities as false. The applicants all expressed their willingness to actively cooperate with the authorities and to engage in criminal proceedings against their employers. 27. On 4 November 2011 the Vienna public prosecutor’s office ( Staatsanwaltschaft Wien ) discontinued the proceedings under Article 104a of the Criminal Code ( Strafgesetzbuch – hereinafter “the CC”) relating to human trafficking (see paragraph 35 below), pursuant to Article 190 § 1 of the Code of Criminal Procedure ( Strafprozessordnung – hereinafter “the CCP” – see paragraph 36 below). On 14 November 2011 the public prosecutor gave a short written decision with reasons for the discontinuation of the proceedings. In the public prosecutor’s view, the offence had been committed abroad by non-nationals, and did not engage Austrian interests within the meaning of Article 64 § 1 (4) of the CC. 28. On 30 November 2011 the applicants lodged an application to continue the investigation ( Fortsetzungsantrag ) with the Vienna Regional Criminal Court ( Straflandesgericht Wien ). They submitted that Austrian interests had indeed been engaged, and that their employers had continued to exploit and abuse them in Austria. In their view, the elements of the crime punishable under Article 104a § 1 (2) of the CC had been present. 29. The Vienna public prosecutor’s office then submitted a statement to the Vienna Regional Criminal Court, specifying its reasons for discontinuing the investigation. There had been no indication in the case file that any of the criminal actions exhaustively listed in Article 104a of the CC had occurred in Austria, particularly since the offence had already been completed in Dubai ( zumal das Delikt bereits in Dubai vollendet wurde ), and the accused were not Austrian citizens. Furthermore, from the applicants’ statements (looking after children, washing laundry, cooking food), it did not appear that they had been exploited in Austria, especially since they had managed to leave their employers only two to three days after their arrival in Vienna. 30. On 16 March 2012 the Vienna Regional Criminal Court dismissed the applicants’ application. The relevant parts of the decision read (translation from German): “The decision to discontinue [criminal proceedings] requires – by implication – that the facts of a case are sufficiently clear, or a lack of indication that investigations would be promising. There is no reason for further prosecution if, on the basis of the ... results of the investigation, a conviction is no more likely than an acquittal ... According to Article 64 § 1 (4) of the CC, if Austrian interests have been harmed by the offence or the perpetrator cannot be extradited, Austrian criminal laws apply independently of the criminal laws of the place where the crime was committed, for example in relation to the offence of kidnapping for ransom under Article 104a of the CC. Owing to the fact that the applicants spent approximately three days in Vienna, the conditions regarding the fulfilment of the elements of the crime under Article 104a § 1 (2) of the CC have not been met, since the relevant acts relating to the exploitation of labour must be committed over a longer period of time; therefore, the commission of the offence in Austria is ruled out. The jurisdiction of the Austrian criminal-law enforcement authorities cannot be deduced from Article 64 § 1 (4) of the CC either. Austrian interests are engaged if either the victim or the perpetrator is an Austrian citizen, or if the criminal acts have a concrete connection to Austria, or if an obligation arises under international law in relation to the prosecution of certain offences. Austrian interests are, in any event, engaged if a criminal offence under Articles 102, 103, 104 or 217 of the CC is committed against an Austrian citizen, or if Austrian funds or Austrian securities ( Wertpapiere ) are the subject of offences under Article 232, or Article 237 in conjunction with Article 232, of the CC. The applicants’ argument that the elements of the crime under Article 104a of the CC had also been fulfilled in Austria therefore fails, and the plea that the alleged criminal actions against them by their employers in Dubai ... would lead to an obligation on the part of Austria under international law is likewise not convincing. In relation to the present case, [this latter argument] also cannot be inferred from the quoted [Supreme Court] judgment no. 11 Os 161/81, which affirmed that Austrian interests had been damaged as a result of the import into Austria of a large amount of narcotics for transport...” This decision was served on the applicants’ counsel on 23 March 2012. 2. Civil proceedings against the applicants’ employers 31. In January 2013 two of the three applicants lodged a civil claim against their employers with the Vienna Labour and Social Court ( Arbeits ‑ und Sozialgericht ) in order to claim their wages. However, they alleged that because of the high risk of having to pay the costs of the proceedings because the employers did not reside in Austria, they withdrew the action. 3. Proceedings concerning the applicants’ residence permits 32. The NGO LEFÖ not only assisted the applicants in filing a criminal complaint against their employers, but also supported them in applying for a special residence permit in Austria for victims of human trafficking, under the former section 69a of the Residence Act ( Niederlassungs - und Aufenthaltsgesetz – see paragraph 46 below). 33. All three applicants were granted a residence permit for special protection purposes in January 2012, valid for one year initially. Subsequently, because of their progressing integration, they were granted other types of residence permits with longer periods of validity. 34. The applicants were officially registered in the Central Register ( Melderegister ) from the point when LEFÖ started supporting them. A personal data disclosure ban was enacted on the Central Register for their protection, so that their whereabouts would not be traceable by the general public. | This case concerned the Austrian authorities’ investigation into an allegation of human trafficking. The applicants, two Filipino nationals, who had gone to work as maids or au pairs the United Arab Emirates, alleged that their employers had taken their passports away from them and exploited them. They claimed that this treatment had continued during a short stay in Vienna where their employers had taken them and where they had eventually managed to escape. Following a criminal complaint filed by the applicants against their employers in Austria, the authorities found that they did not have jurisdiction over the alleged offences committed abroad and decided to discontinue the investigation into the applicants’ case concerning the events in Austria. The applicants maintained that they had been subjected to forced labour and human trafficking, and that the Austrian authorities had failed to carry out an effective and exhaustive investigation into their allegations. They argued in particular that what had happened to them in Austria could not be viewed in isolation, and that the Austrian authorities had a duty under international law to investigate also those events which had occurred abroad. |
827 | Right to vote (Article 3 of Protocol No. 1) | 2. The first applicant, Mr Toplak, was born in 1937 and lived in Maribor. The second applicant, Mr Mrak, was born in 1983 and lives in Ljubljana. They were represented by Mr S. Vesenjak, a lawyer practising in Maribor. 3. The Government were represented by their Agent, Mrs B. Jovin Hrastnik. 4. On 19 July 2019 the first applicant died. His daughters, Nataša Toplak and Renata Toplak, informed the Court that they wished to continue the proceedings before the Court in his stead. 5. The facts of the case, as submitted by the parties, may be summarised as follows. 6. The applicants were, together with a number of other voters with disabilities, involved in numerous sets of proceedings aimed at improving the access of people with disabilities to the voting process. The sets of proceedings detailed below constitute only a minor part of this larger endeavour, in which the claimants were mainly unsuccessful before the Slovenian courts, except for petitions for constitutional review leading to the Constitutional Court’s decision of 2014, which is summarised below (see paragraphs 43-45 below). The applicants’ disability 7. Both applicants had muscular dystrophy and used electric wheelchairs for mobility. The first applicant’s condition deteriorated in 2018, which meant that he was no longer able to hold a pen. 2015 Referendum 8. In 2014 the Constitutional Court ruled that the legislature should, within two years, adopt legal provisions ensuring the accessibility of all polling stations to people with disabilities (see paragraphs 43-45 below). In 2015 almost 50% of polling stations in Slovenia were physically accessible to people with disabilities. 9. Further to the decision by the National Assembly of 4 November 2015, the National Election Commission (“the National Commission”) announced that a referendum concerning amendments to the Marriage and Family Relations Act would be held on 20 December 2015 (“the 2015 Referendum”). The announcement provided, inter alia, that voters with disabilities who considered that the polling station of their local electoral area was not accessible to them should inform their district election commission (“the district commission”) in advance of their intention to vote at a polling station that was accessible to people with disabilities or at a polling station with an available voting machine. Relevant events before the 2015 Referendum and the proceedings relating to the legal actions brought by the applicantsThe first applicant The first applicant The first applicant 10. On 16 November 2015 the National Commission received a letter from the first applicant in which he requested that the polling station for his local electoral area be accessible for people with disabilities. He specified the required width of the path and ramp, the angle of the ramp, and its bearing capacity, and requested access to the voting booth, voting table and ballot box. The National Commission forwarded his letter to the district commission in Maribor, asking it to verify whether the polling station indicated in the first applicant’s request could be accessed without obstacles by people with disabilities and, if not, whether it would be possible to install a ramp in accordance with the technical requirements specified by the first applicant. 11. On 21 November 2015 the first applicant, together with another person, Š., brought an action in the Administrative Court against the National Commission seeking (i) the provision of access for people with disabilities at their local polling station and (ii) the ordering of an interim measure in order to ensure the accessibility of that polling station during the upcoming referendum. The first applicant and Š. argued that all voters, including those with a disability, had the right to vote at the polling station for their local electoral area and requested that the Administrative Court order the State to ensure on the day of the referendum (20 December 2015), and for all subsequent referendums and elections, that their respective polling stations would be wheelchair-accessible; this would entail the making of all necessary adjustments to voting booths and ballot boxes. They set out specific details concerning wheelchair accessibility. On 3 December 2015, the claimants specified that the action had been brought under section 4 of the Administrative Disputes Act (see paragraph 48 below) in respect of an alleged violation of human rights. 12. In the meantime, on 23 November 2015 the National Commission asked a private company to provide it with a price quote for installing a ramp for the entrance to the first applicant’s local polling station. The following day the director of the National Commission informed the first applicant that his polling station would be equipped with a ramp. On the same day, his nephew replied on behalf of the first applicant, asking for confirmation that other conditions set out in his request would also be complied with. 13. On 4 December 2015 the Administrative Court issued a judgment and decision dismissing the action and rejecting a motion for an interim measure. It pointed out that the two-year deadline for remedying the incompatibility of the National Assembly Elections Act (“the Elections Act”) with the Constitution imposed on the legislature by the Constitutional Court’s decision had not yet expired (see paragraphs 43-45 below). It was furthermore noted that the claimants’ access to their local polling station had been ensured and that their assumptions regarding the inaccessibility of voting booths and ballot boxes were based only on certain past experiences. Certain ad hoc adaptations could be made in practice (regardless of the existing regulatory framework), and it was up to the electoral bodies to do what was necessary to secure the rights of voters. The court referred to the correspondence between the first applicant, the National Commission and the district commission and found that the first applicant had failed to prove an interference with his right to vote. 14. On 10 December 2015 – that is to say prior to the 2015 Referendum – the first applicant and Š. lodged an appeal. They also requested the Supreme Court to issue an interim decision ordering the necessary adjustments to be made before the 2015 Referendum. The request for the interim decision was dismissed on 16 December 2015 by the Supreme Court, which found, inter alia, that the defendant had undertaken to secure the conditions necessary for the appellants to exercise their right to vote, in line with the Constitution and the relevant legislation. On 5 July 2016 the Supreme Court rejected the appeal lodged by the first applicant and Š., explaining that, under section 4 of the Administrative Disputes Act, the judicial protection of human rights was possible only if a different form of judicial protection had not already been available. In the instant case, however, protection had already been offered under the Referendums and Popular Initiatives Act (“the Referendums Act”) (see paragraph 46 below). Furthermore, the judicial protection provided under section 4 of the Administrative Disputes Act was not intended to protect against future actions that could potentially interfere with a person’s legal position, but rather only related to acts that had already occurred. 15. On 12 September 2016 the first applicant and Š. lodged a constitutional complaint (no. Up 771/16). They alleged, inter alia, that the Administrative Court had violated their right to non-discrimination in the exercise of their right to participate in the management of public affairs (as protected, respectively, by Articles 14 and 44 of the Constitution) and that the Supreme Court had denied them the only effective remedy. At the same time the first applicant lodged a petition for a review of the constitutionality of several statutes that allegedly failed to provide for the speedy resolution of election-related disputes. 16. On 5 December 2018 the Constitutional Court decided not to accept the constitutional complaint for consideration. It specified that the petition for constitutional review would be dealt with separately (see paragraph 32 below). The decision was served on the first applicant on 31 December 2018. The second applicant 17. On 16 November 2015 the National Commission received a letter from the second applicant requesting that the polling station for his local electoral area be made accessible to people with disabilities. In his letter, the second applicant set out the changes that would be necessary in order to render the polling station accessible to people with disabilities; those specifications were similar to those set out by the first applicant (see paragraph 10 above). The director of the National Commission contacted the second applicant’s district commission, which replied that the second applicant’s local polling station, which was a school, would be accessible to wheelchair users. After being informed of this the second applicant pointed out that the school was surrounded by a fence and that the ballot boxes were normally on a higher floor, which could be accessed only by stairs. In further correspondence, the district commission affirmed that the polling station was accessible and submitted photos in this regard. The second applicant noticed that the photos showed a side entry, which previously he had not been able to use, and proposed that a visit of the school be carried out in order to verify the accessibility of the premises. 18. On 17 December 2015 an official note was made by the district commission, which indicated that the second applicant had made a visit and that it had been established that access to the polling station had been arranged directly from the parking area through the side entry to the school, which was equipped with a ramp. There was also a ramp leading to the floor on which the polling rooms were situated. It was also noted that the school had in the past had a pupil with a disability who had used the ramp and that all other voters would be entering the building this way in order to prevent any kind of discrimination. This polling station was subsequently also formally declared accessible to people with disabilities. 19. In the light of the lack of proper access for people with disabilities to their local polling station (in contravention of both section 9 of the Equality of Opportunities for People with Disabilities Act and the Constitution), on 17 December 2015 the second applicant, together with another person, A., brought an action in the Administrative Court seeking the provision of access to their local polling station for people with disabilities, and lodged with the Administrative Court an application for the ordering of an interim measure against the National Commission and the district commissions concerned. The second applicant and A. submitted arguments similar to those submitted by the first applicant and Š. (see paragraph 11 above). 20. On 18 December, the Administrative Court dismissed both the action (after examining it under section 4 of the Administrative Disputes Act) and the request for an interim measure. Referring to the above-mentioned correspondence between the second applicant and the electoral bodies, the visit that had been carried out, and the submissions made by the National Commission during the proceedings, the court found that the defendants had ensured that the second applicant’s local polling station would be accessible to people with disabilities. It also noted that upon receiving a request from a voter with disabilities, the relevant authorities were under an obligation to do everything within their power to ensure necessary and appropriate changes and adaptations, provided that they did not impose a disproportionate or unnecessary burden. This was so regardless of whether such an obligation was set out also by the relevant legislation. 21. On 4 January 2016, the second applicant and A. lodged an appeal. They described the situation at the polling station on the day of the 2015 Referendum. The second applicant indicated that he had been able to access the polling station with his wheelchair, mark and deposit his ballot paper, and leave. However, he alleged that the ramp by the entrance had been steep and thus not in compliance with accessibility standards. In his submissions, he stated that he had been afraid when using the ramp, and that when he had been using the ramp he had needed assistance from a passer-by. He asserted that he had suffered discrimination because he had not been able to make his way along the ramp without the assistance of others. 22. On 5 July 2016 the Supreme Court rejected the appeal on the same grounds as those cited as justification for the rejection of the appeal lodged by the first applicant and Š. (see paragraph 14 above). 23. On 12 September 2016 the second applicant and A. lodged a constitutional complaint (no. Up-770/16) containing similar arguments to those submitted by the first applicant and Š. in their own constitutional complaint (see paragraph 15 above). They alleged, inter alia, that on the day of the 2015 Referendum their polling stations had been inaccessible. 24. On 28 January 2019, the Constitutional Court decided not to accept for consideration the constitutional complaint of the second applicant and A. The decision was served on the second applicant on 5 February 2019. The applicants’ participation in the 2015 Referendum 25. Both applicants voted in the 2015 Referendum. In his application form, the first applicant did not submit any details concerning his voting. In his observations he acknowledged that he had voted. He furthermore explained that he had been accompanied by several people, including his daughter and nephew, who had recorded a video and published it on Facebook on the same day. According to the first applicant, owing to the positioning of the furniture he had only been able to cast his vote in the middle of the room on the table with several people around him, which had compromised the secrecy of his vote. The election committee had allegedly not permitted the voting booths to be moved. Photos published on Facebook by the first applicant’s nephew, Mr Jurij Toplak, and subsequently submitted by the first applicant’s representative show the first applicant proceeding independently up the ramp leading to the polling station. They also show him inside the polling station at a table divided by a partition. The table appears to be of a height that would have allowed the first applicant to access the material left on it. One person is standing next to him. It is unclear whether that person was helping the first applicant or was marking his own ballot paper. One more person can be seen on the other side of the table (possibly behind the partition). The photos on Facebook were accompanied by text that read: “My uncle, Franc Toplak, voted in an accessible polling station today. One polling station adjusted, 3000 to go.” 26. The second applicant submitted that he had had to wait outside the polling situation until he had asked a passer-by to push him up the ramp, which was situated at the back entrance. He seemed, moreover, to imply that the voting booth and ballot box that he had used had not been adjusted to the needs of people with disabilities. 2019 EUROPEAN PARLIAMENT elections 27. Under the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), all polling stations were required to be accessible to people with disabilities as of 1 February 2018. It is unclear what, other than entry to the polling station, the required level of accessibility involved. The Government submitted that, in general, the furniture inside polling stations (tables and chairs) was of standard dimensions, partitions designed to secure the secrecy of the voting procedure were positioned on the floor and the ballot boxes were placed on tables. 28. On 9 April 2019 the National Commission announced that elections to choose Slovenian members of the European Parliament (“the 2019 EP Elections”) would be held on 26 May 2019. The announcement included the information that voters with disabilities should inform their local district commission if they wished to vote by post. It also provided that those who could not vote at the polling station owing to illness should inform the relevant district commission by 22 May 2019 of their intention to vote from home. Requests to be permitted to vote by mail or from home could also be made via a dedicated Internet site. 29. The first applicant submitted in his application form that a ramp had been installed but that in all other aspects the polling station had not been rendered accessible. The second applicant submitted that his polling station “[had not been] made accessible in any way”. They both submitted that they had been unable to “enter a little polling room with a wheelchair [owing] to a narrow door entry [and that] the ballot box and the desk [had been] too high and inaccessible, and no accessible voting methods or equipment [had been] available”. It can be seen from the submissions lodged by the first applicant, in reply to those of the Government, that he did not participate in the 2019 EP Election owing to a deterioration in his condition. According to him, he had no longer been able to use a pen and had not wished to be assisted by another person. 30. The Government submitted copies of the voting directory from the second applicant’s local polling station; the directory contained the name and signature of the second applicant, who had apparently voted in the election. The records of the election committee responsible for the second applicant’s local polling station do not contain any complaint made by participants. review of legisation by the constitutional court 31. On 28 September 2018 a number of petitioners, including the second applicant, requested to be allowed to join the proceedings in respect of the petition for constitutional review lodged by the first applicant (see paragraphs 15 and 16 above). Together with the first applicant, they submitted additional arguments concerning, inter alia, sections 79 and 79a of the Elections Act (see paragraphs 40 and 42 below). They submitted that the Constitutional Court’s 2014 decision, which required all polling stations to be accessible to people with disabilities (see paragraphs 43-45 below), had been implemented by the amendments to the Elections Act as far as the physical accessibility of polling stations was concerned (see paragraph 42 below), but not with respect to voting machines. They emphasised that proceedings that concerned elections and were initiated in a timely manner should be completed before the election day in question. They also submitted that polling stations could be properly adjusted before local elections that were to take place in two months’ time. 32. On 21 February 2019 the Constitutional Court rejected as manifestly ill-founded the petition for constitutional review in so far as it concerned the issue of a speedy resolution of election-related disputes. As regards sections 79 and 79a of the Elections Act (see paragraphs 38-42 below) and the issue of the non-implementation of the Constitutional Court’s 2014 decision, it noted that the conditions for suspending the effect of the above-mentioned provisions had not been met but that consideration of the petition would be given absolute priority. 33. On 22 October 2020 the Constitutional Court delivered a decision in which it examined the implementation of its 2014 decision (see paragraphs 43-45 below). It found that the Elections Act, as amended by the 2017 Amendment (see paragraph 42 below), was not incompatible with the Constitution. It noted that section 79a, which had been inserted into the Elections Act by the 2017 Amendment, explicitly provided that polling stations must be accessible to people with disabilities and that the petitioners themselves had considered that as regards this aspect the Constitutional Court’s 2014 decision had been properly implemented. As regards the availability of voting machines, it noted that the use of voting machines had been ended by the 2017 Amendment and that a new assessment of the compatibility of the election legislation with the Constitution was required in that respect. The Constitutional Court noted that the petitioners’ main argument was that the legislature should have adopted measures that would allow every person with a disability to vote autonomously, under conditions of secrecy, and at the nearest polling station to his or her residence without having to give advance notice of his or her attendance. 34. The Constitutional Court cited: the United Nations Convention on the Rights of People with Disabilities (“the CRPD”) – especially Article 29 thereof; the Venice Commission’s Revised Interpretative Declaration to the Code of Good Practice in Electoral Matters on the Participation of People with Disabilities in Elections; and the Parliamentary Assembly of the Council of Europe’s resolution entitled “The political rights of people with disabilities: a democratic issue” (see paragraphs 54, 58, 59 and 60-62 below). 35. The Constitutional Court took account of the arguments submitted by the Government and the National Assembly – specifically, that only a very small number (in 2015 only 0.2% of people with disabilities) had used voting machines, that such machines could not facilitate voting by people suffering from all types of disability, that their use was very expensive and that a new mode of voting for people with disabilities (namely, voting by post) had been introduced by the 2017 Amendment. The Constitutional Court also noted that the Elections Act also provided for assisted voting and that that mode of voting was also envisaged in the above-mentioned international instruments. Referring to the relevant provisions of the Elections Act and the Penal Code, the Constitutional Court stated that the law should be interpreted as imposing on the person assisting the person with a disability the obligation to respect the secrecy of the ballot. It also noted that election committees (see paragraphs 38 and 40 below) had little scope to exercise discretion in taking decisions. When confronted by a person with a disability an election committee had merely – as regards the voting assistants – to ascertain his or her identity and to note his or her name in its records. The Constitutional Court furthermore examined the regulation governing voting at home, which it considered to be applicable also to people with disabilities. The Constitutional Court, referring to a “reasonable accommodation” ( primerna prilagoditev ), noted that the legislature was under the obligation to ensure that people with disabilities could as much as possible exercise their right to vote in person, autonomously, in conditions of secrecy and at a polling station, but that the legislature was not under an obligation to adopt measures that would impose a disproportionate or unnecessary burden. 36. The Constitutional Court went on to note that a 2018 decision of the United Nations Committee on the Rights of People with Disabilities (“the CRPD Committee”) concerning a case brought by Fiona Given against Australia (see paragraph 57 below), on which the petitioners had relied, could not be understood as having done away with the concept of a “disproportionate burden”. It furthermore noted that only three European countries (Belgium, France and Bulgaria) continued to use voting machines to a different extent, and that voting with the assistance of another person was a method of voting permitted in almost all European countries. The Constitutional Court concluded that assisted voting, as regulated in Slovenia, was in line with the principle of reasonable accommodation. | This case concerned the alleged lack of adequate measures to allow the applicants, who had muscular dystrophy, to vote in the 2019 elections to the European Parliament and in a 2015 national referendum, and the alleged lack of effective remedies in this regard. The applicants complained of the lack of effective judicial means by which they could have requested an accessible polling station in advance. They also complained of the lack of any effective remedy by which to claim compensation for being discriminated against in exercising their right to vote. |
674 | Public persons or political figures | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1980 and lives in Kópavogur. At the material time he was a well-known person in Iceland who for years had published articles, blogs and books and appeared in films, on television and other media, under pseudonyms. 6. In November 2011, an 18 - year - old woman reported to the police that the applicant and his girlfriend had raped her. In January 2012 another woman reported to the police that the applicant had committed a sexual offence against her a few years earlier. Upon the completion of the police investigation the Public Prosecutor, on 15 June and 15 November 2012, dismissed the cases in accordance with Article 145 of the Act on Criminal Procedures, because the evidence which had been gathered was not sufficient or likely to lead to a conviction. The applicant submitted a complaint to the police about allegedly false accusations made against him by the two women. This case was also dismissed. 7. On 22 November 2012 Monitor, a magazine accompanying Morgunblaðið (a leading newspaper in Iceland), published an interview with the applicant. A picture of the applicant was published on the front page and in the interview the applicant discussed the rape accusation against him. The applicant claimed several times that the accusations were false. He stated, inter alia, that it was not a priority for him for the girl ’ s name to be exposed and that he was not seeking revenge against her. He accepted that having placed himself in the spotlight of the media he had to tolerate publicity which was not always “sunshine and lollipops” but criticised the way the media had covered his case. When asked about the girl ’ s age, he responded that the girl had been in a club where the minimum age had been 20 years and that it had been a shock to find out later that she had been only 18 years old. When asked about his complaints against the girl for allegedly wrongful accusations, he stated again that he was not seeking revenge against those who had reported him to the police, but that it was clear that they had had ulterior motives. He hoped that the police would see that it was important to have a formal conclusion in the case and that the documents in the case were “screaming” conspiracy. 8. On the same day, X published an altered version of the applicant ’ s front-page picture with the caption “ Fuck you rapist bastard” on his account on Instagram, an online picture - sharing application. X had altered the picture by drawing an upside down cross on the applicant ’ s forehead and writing “loser” across his face. 9. Apparently X had believed that only his friends and acquaintances, who were his “followers” on Instagram, had access to the pictures he published. However, his pictures were also accessible to other Instagram users. 10. On 23 November 2012 the newspaper Vísir published an online article about X ’ s post, along with the altered picture and an interview with the applicant. 11. On 26 November 2012 the applicant ’ s lawyer sent a letter to X requesting that he withdraw his statement, apologise in the media and pay the applicant punitive damages. By email the same day, X ’ s lawyer submitted that X had not distributed the picture online; it had been posted for a closed group of friends on Instagram and others had distributed it. Furthermore, the email stated that X was sorry and that the picture had been shared without his consent or knowledge. 12. On 17 December 2012, the applicant lodged defamation proceedings against X before the District Court of Reykjavík and asked for him to be sentenced to punishment, under the applicable provisions of the Penal Code, for altering the picture and for publishing it on Instagram with the caption “Fuck you rapist bastard”. The applicant further requested that the statement “Fuck you rapist bastard” be declared null and void and that X be ordered to pay him 1,000,000 Icelandic krónur (ISK; approximately 8,800 euros (EUR)) in non-pecuniary damages under the Tort Liability Act, plus interest, ISK 150,000 (approximately 1,300 EUR) for publishing the judgment in the media under Article 241 of the Penal Code, and the applicant ’ s legal costs. 13. By judgment of 1 November 2013, the District Court found against the applicant. The court stated, inter alia, that the applicant enjoyed the personal protection afforded by law, irrespective of which of his pseudonyms he was using. In the same way, the applicant had to take responsibility for material he issued, irrespective of the name he chose to use when doing so. The court further considered that the altered picture, along with the text, should be considered as a whole and that it contained X ’ s opinion of the applicant ’ s person, which indicated a strong dislike. As to the subject matter, the District Court found that the picture and the statement had been a part of general public debate because the applicant was a well-known person in Iceland and had to accept being the subject of public discussions. The court then described in detail his professional activities of writing online, publishing books and appearing on television, especially under pseudonyms, the subject matter of his work, the subsequent criticism of his work and his participation in public debates about it. The court noted that this had led to greater outcry and public debate about the accusations against him of sexual offences, a debate in which he had participated. The court concluded that the manner in which the words had been presented by X had been more invective than a factual statement, and should therefore be considered as a value judgment rather than a statement of fact. X ’ s statement had been within the bounds of freedom of expression granted to him by law. 14. On 26 March 2014 the applicant appealed to the Supreme Court against the District Court ’ s judgment. Before the Supreme Court the applicant reiterated his argument that X ’ s Instagram account had been an “open” account, meaning that the picture had been accessible not only to his followers but to all Instagram users, over 100,000,000 people at the material time. He submitted further documents to support his argument. 15. By judgment of 20 November 2014 the majority of the Supreme Court (two out of three judges) upheld the District Court ’ s conclusion. The Supreme Court accepted that the altered picture had been accessible, not only to X ’ s followers on Instagram, but to other users as well. 16. Furthermore, the judgment contained the following reasons: “ [X] claims that his act of uploading the altered picture onto the picture - sharing application in question did not constitute the publication of the picture within the meaning of Article 236(2) of the Penal Code No 19/1940, as he had believed that only a limited number of people would have access to it. This cannot be accepted, as the act of making something accessible in electronic format to such a large number of people as stated above, irrespective of whether the persons in question are the friends and acquaintances of the person doing so, [ ... ], is considered to be a publication according to the traditional definition of the term. It remains to be determined whether [X ’ s] publication of the picture had, given the circumstances, constituted a defamatory allegation against the [ applicant] under Article 235 of the Penal Code. The appealed judgment describes in detail that, before the complaints of sexual offences against him as described above had been reported, [the applicant] had been a well-known person, not least for his performance in public under the names of Gillz or Gillzenegger, the names under which he wrote on Internet, published books and pictures and presented himself in the media. The views of the [ applicant ] published there garnered some attention, as well as controversy; views which included his attitudes towards women and their sexual freedom. The documents of the case reveal that there were instances when his criticism had been directed towards named individuals, often women, and in some cases his words could be construed to mean that he was in fact recommending that they should be subjected to sexual violence. The [ applicant] has often justified such conduct by stating that the material had been meant in jest and that those who criticised it lacked a sense of humour. The Supreme Court agrees with the District Court that the [ applicant] enjoys the personal protection provided for by law, under Article 71 of the Constitution and Article 8(1) of the European Convention of Human Rights, cf. Act No 62/1994, irrespective of whether he was appearing under his own name or a pseudonym. In the same manner, he must take responsibility for the material he produces, irrespective of what name he chooses to use. When the [applicant] gave the aforementioned newspaper interview and employed provocative, if not derogatory, comments about others, including the girl who had accused him of sexual offences, he launched a public debate and should, moreover, have known that his comments would result in strong reactions from those who strongly disliked his abovementioned views. [X] enjoys freedom of expression according to Article 73(2) of the Icelandic Constitution and Article 10(1) of the European Convention on Human Rights, and the District Court reached the correct conclusion that under these circumstances he had enjoyed greater freedom to express himself about the [applicant] and his opinions. In assessing whether or not comments or other expressions can be considered a defamatory allegation according to Article 235 of the General Penal Code, taking into consideration the manner in which the provision of Article 10 of the [Convention] has been clarified by the European Court of Human Rights, it has to be decided whether the expression involved a value judgment or a factual statement. Although it can be agreed that by using the term ‘ rapist ’ about a named person, that person is being accused of committing rape, account must be taken of the context in which the term is set, cf. the ruling of the Supreme Court on 29 January 2009 in Case No 321/2008. If the altered picture and the comment ‘ Fuck you rapist bastard ’ are taken as a whole – as the parties agree should be the case – the Supreme Court agrees with the District Court that this was a case of invective on the part of [X] against the [applicant] in a ruthless public debate, which the latter, as stated previously, had instigated. It was therefore a value judgment about the [applicant] and not a factual statement that he was guilty of committing rape. In this context, it makes a difference, even though this alone is not decisive for the conclusion, that [X] did not maintain that the [applicant] had thus committed a criminal offence against someone else, named or unnamed. Accordingly, and with reference to the conclusion of the appealed judgment, the conclusion that [X] expressed himself within the limits of the freedom to which he is entitled under Article 73(2) of the Constitution, must be upheld. As a result he is acquitted of all the [applicant ’ s] claims. As is rightly stated in the appealed ruling, the modified picture and the comments of [X] attached thereto were indecent and tasteless with respect to the [applicant]. For this reason, and with reference to Article 130(3), cf. Article 166 of Act No 91/1991 on Civil Procedure, legal costs before both court instances will be cancelled.” 17. In the minority ’ s opinion, the statement “ Fuck you rapist bastard”, considered in the light of the content of the article published by Monitor, could not be considered a value judgment but rather a grave insinuation that the applicant had committed a serious criminal offence. The minority concluded that, considering that the criminal investigation had ended with the case against the applicant being dismissed, and even if the applicant was a public person who had expressed himself in a controversial way in public, he should not have to tolerate this kind of comment. | This case concerned the complaint by a well-known blogger about a Supreme Court ruling, which found that he had not been defamed by the words “Fuck you rapist bastard” used in an Instagram post about him. Prosecutors had just before dismissed rape and sexual offence accusations against him. The applicant complained that the Supreme Court judgment meant that he could be called a rapist without being charged or convicted of such a crime and without being able to defend himself. |
734 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE A. The degree of disturbance caused to each applicant by night flights 11. Ruth Hatton was born in 1963. Between 1991 and 1997 she lived in East Sheen with her husband and two children. According to information supplied by the Government, her house was 11.7 km from the end of the nearest runway at Heathrow and fell within a daytime noise contour where the level of disturbance from aircraft noise was between 57 and 60 dBa Leq. According to the Government, dBA Leq measure the average degree of community annoyance from aircraft noise over a sixteen-hour daytime period and studies have shown that in areas where the daytime noise exposure is below 57 dBA Leq there is no significant community annoyance. The Government state that a daytime noise contour of 57 dBA Leq represents a low level of annoyance; 63 dBA Leq represent a moderate level of annoyance; 69 dBA Leq correspond to a high level of annoyance; and 72 dBA Leq represent a very high level of annoyance. 12. According to Ms Hatton, in 1993 the level of night noise increased and she began to find noise levels to be “intolerable” at night. She believed that the noise was greater when aircraft were landing at Heathrow from the east. When this happened, Ms Hatton was unable to sleep without ear plugs and her children were frequently woken up before 6 a.m., and sometimes before 5 a.m. If Ms Hatton did not wear ear plugs, she would be woken by aircraft activity at around 4 a.m. She was sometimes able to go back to sleep, but found it impossible to go back to sleep once the “early morning bombardment” started which, in the winter of 1996/1997, was between 5 a.m. and 5.30 a.m. When she was woken in this manner, Ms Hatton tended to suffer from a headache for the rest of the day. When aircraft were landing from the west the noise levels were lower, and Ms Hatton's children slept much better, generally not waking up until after 6.30 a.m. In the winter of 1993/1994, Ms Hatton became so run down and depressed by her broken sleep pattern that her doctor prescribed anti-depressants. In October 1997, she moved with her family to Kingston-upon-Thames in order to get away from the aircraft noise at night. 13. Peter Thake was born in 1965. From 1990 until 1998, he lived in Hounslow with his partner. His home in Hounslow was situated 4.4 km from Heathrow Airport and slightly to the north of the southern flight path, within a daytime noise contour of between 63 and 66 dBA Leq, according to the Government. 14. Mr Thake claims that in about 1993 the level of disturbance at night from aircraft noise increased notably and he began to be woken or kept awake at night by aircraft noise. Mr Thake found it particularly difficult to sleep in warmer weather, when open windows increased the disturbance from aircraft noise, and closed windows made it too hot to sleep, and he found it hard to go back to sleep after being woken by aircraft noise early in the morning. He was sometimes kept awake by aeroplanes flying until midnight or 1 a.m. and then woken between 4 a.m. and 5 a.m. Mr Thake was also sometimes woken by aeroplanes flying at odd hours in the middle of the night, for example when diverted from another airport. In 1997, Mr Thake became aware that he could complain to the Heathrow Noise Line about aircraft noise if he made a note of the time of the flight. By 30 April 1997, Mr Thake had been sufficiently disturbed to note the time of a flight, and made a complaint to the Heathrow Noise Line on nineteen occasions. He remained in Hounslow until February 1998 because his family, friends and place of work were in the Heathrow area, but moved to Winchester, in Hampshire, when a suitable job opportunity arose, even though it meant leaving his family and friends, in order to escape from the aircraft noise, which was “driving [him] barmy”. 15. John Hartley was born in 1948 and has lived with his wife at his present address in Richmond since 1989. According to the information provided by the Government, Mr Hartley's house is 9.4 km from the end of the nearest Heathrow runway and, situated almost directly under the southern approach to the airport, within a daytime noise contour area of between 60 and 63 dBA Leq. The windows of the house are double-glazed. 16. From 1993, Mr Hartley claims to have noticed a “huge” increase in the disturbance caused by flights between 6 a.m. and 6.30 a.m. (or 8 a.m. on Sundays). He states that the British Airports Authority did not operate a practice of alternation (using only one runway for landings for half the day, and then switching landings to the other runway) during this period as it did during the day, and the airport regularly had aircraft landing from the east on both runways. When the wind was blowing from the west and aeroplanes were landing from the east, which was about 70% of the time, aircraft noise would continue until about midnight, so that Mr Hartley was unable to go to sleep earlier than then. He would find it impossible to sleep after 6 a.m. on any day of the week, and was usually disturbed by aircraft noise at about 5 a.m., after which he found he could not go back to sleep. When the aeroplanes were landing from the west, Mr Hartley was able to sleep. 17. Philippa Edmunds was born in 1954 and lives with her husband and two children in East Twickenham. She has lived at her present address since 1992. According to information supplied by the Government, Ms Edmund's house is 8.5 km from the end of the nearest Heathrow runway and approximately 1 km from the flight path, within a daytime noise contour area of under 57 dBA Leq. 18. The applicant claims that before 1993 she was often woken by aircraft noise at around 6 a.m. From 1993, she tended to be woken at around 4 a.m. In 1996, Ms Edmunds and her husband installed double-glazing in their bedroom to try to reduce the noise. Although the double-glazing reduced the noise, Ms Edmunds continued to be woken by aircraft. She suffered from ear infections in 1996 and 1997 as a result of wearing ear plugs at night and, although she was advised by a doctor to stop using them, she continued to do so in order to be able to sleep. Ms Edmunds was also concerned about the possible long-term effects of using ear plugs, including an increased risk of tinnitus. Ms Edmunds's children both suffered from disturbance by aircraft noise. 19. John Cavalla was born in 1925. From 1970 to 1996 he lived with his wife in Isleworth, directly under the flight path of the northern runway at Heathrow Airport. According to information supplied by the Government, the applicant's house was 6.3 km from the end of the nearest Heathrow runway, within a daytime noise contour of between 63 and 66 dBA Leq. 20. The applicant claims that in the early 1990s the noise climate deteriorated markedly, partly because of a significant increase in traffic, but mainly as a result of aircraft noise in the early morning. Mr Cavalla considers that air traffic increased dramatically between 6 a.m. and 7 a.m. as a result of the shortening of the night quota period. He found that, once woken by an aircraft arriving at Heathrow Airport in the early morning, he was unable to go back to sleep. 21. In 1996, Mr Cavalla and his wife moved to Sunbury in order to get away from the aircraft noise. According to the Government, the new house is 9.5 km from Heathrow, within a daytime noise contour area of under 57 dBA Leq. After moving house, Mr Cavalla did not live under the approach tracks for landing aircraft, and aircraft used the departure route passing over his new home only very rarely at night. Consequently, he was only very rarely exposed to any night-time aircraft noise following his move. 22. Jeffray Thomas was born in 1928 and lives in Kew with his wife and two sons, and the wife and son of one of those sons. The family have lived at their present address since 1975, in a house lying between the north and south Heathrow flight paths. According to the Government, it is 10.7 km from Heathrow, within a noise contour area of 57 to 60 dBA Leq. Aircraft pass overhead on seven or eight days out of every ten when the prevailing wind is from the west. 23. Mr Thomas claims to have noticed a sudden increase in night disturbance in 1993. He complains of being woken at 4.30 a.m., when three or four large aircraft tended to arrive within minutes of each other. Once he was awake, one large aeroplane arriving every half hour was sufficient to keep him awake until 6 a.m. or 6.30 a.m., when the aeroplanes started arriving at frequencies of up to one a minute until about 11 p.m. 24. Richard Bird was born in 1933 and lived in Windsor for thirty years until he retired in December 1998. His house in Windsor was directly under the westerly flight path to Heathrow Airport. According to the Government, it was 11.5 km from Heathrow, within a daytime noise contour area of 57 to 60 dBA Leq. 25. The applicant claims that in recent years, and particularly from 1993, he and his wife suffered from intrusive aircraft noise at night. Although Mr Bird observed that both take-offs and landings continued later and later into the evenings, the main problem was caused by the noise of early morning landings. He stated that on very many occasions he was woken at 4.30 a.m. or 5 a.m. by incoming aircraft, and was then unable to get back to sleep, and felt extremely tired later in the day. Mr Bird retired in December 1998 and moved with his wife to Wokingham, in Surrey, specifically to get away from the aircraft noise which was “really getting on [his] nerves”. 26. Tony Anderson was born in 1932 and has lived since 1963 in Touchen End, under the approach to runway 09L at Heathrow Airport and, according to the Government, 17.3 km from the end of the nearest runway, within a daytime noise contour area of under 57 dBA Leq. According to the applicant, by 1994 he began to find that his sleep was being disturbed by aircraft noise at night, and that he was being woken at 4.15 a.m. or even earlier by aircraft coming in from the west to land at Heathrow Airport. 27. The dBA Leq noise contour figures supplied by the Government and referred to above measure levels of annoyance caused by noise during the course of an average summer day. The Government state that it is not possible to map equivalent contours for night noise disturbance, because there is no widely accepted scale or standard with which to measure night-time annoyance caused by aircraft noise. However, the Government claim that the maximum “average sound exposure” levels, in decibels (dBA), suffered by each applicant as a result of the seven different types of aircraft arriving at Heathrow before 6 a.m. each morning is as follows: Ms Hatton – 88 dBA; Mr Thake – 88.8 dBA; Mr Hartley – 89.9 dBA; Ms Edmunds – 83.4 dBA; Mr Cavalla (at his previous address) – 94.4 dBA; Mr Thomas – 88.7 dBA; Mr Bird – 87.8 dBA; and Mr Anderson – 84.1 dBA. The Government further claim that the average “peak noise event” levels, that is the maximum noise caused by a single aircraft movement, suffered by each applicant at night are as follows: Mrs Hatton – 76.3 dBA; Mr Thake – 77.1 dBA; Mr Hartley – 78.9 dBA; Ms Edmunds – 70 dBA; Mr Cavalla (at his previous address) – 85 dBA; Mr Thomas – 77.2 dBA; Mr Bird – 76 dBA; Mr Anderson – 71.1 dBA. The Government claim that research commissioned before the 1993 review of night restrictions indicated that average outdoor sound exposure levels of below 90 dBA, equivalent to peak noise event levels of approximately 80 dBA, were unlikely to cause any measurable increase in overall rates of sleep disturbance experienced during normal sleep. The applicants, however, refer to World Health Organisation “Guidelines for Community Noise”, which gave a guideline value for avoiding sleep disturbance at night of a single noise event of 60 dBA [1]. B. The night-time regulatory regime for Heathrow Airport 28. Heathrow Airport is the busiest airport in Europe, and the busiest international airport in the world. It is used by over 90 airlines, serving over 180 destinations world-wide. It is the United Kingdom's leading port in terms of visible trade. 29. Restrictions on night flights at Heathrow Airport were introduced in 1962 and have been reviewed periodically, most recently in 1988, 1993 and 1998. 30. Between 1978 and 1987, a number of reports into aircraft noise and sleep disturbance were published by or on behalf of the Civil Aviation Authority. 31. A Consultation Paper was published by the United Kingdom government in November 1987 in the context of a review of the night restrictions policy at Heathrow. The Consultation Paper stated that research into the relationship between aircraft noise and sleep suggested that the number of movements at night could be increased by perhaps 25% without worsening disturbance, provided levels of dBA Leq were not increased. 32. It indicated that there were two reasons for not considering a ban on night flights: firstly, that a ban on night flights would deny airlines the ability to plan some scheduled flights in the night period, and to cope with disruptions and delays; secondly, that a ban on night flights would damage the status of Heathrow Airport as a twenty-four-hour international airport (with implications for safety and maintenance and the needs of passengers) and its competitive position in relation to a number of other European airports. 33. From 1988 to 1993, night flying was regulated solely by means of a limitation on the number of take-offs and landings permitted at night. The hours of restriction were as follows: Summer 11.30 p.m. to 6 a.m. weekdays, 11.30 p.m. to 6 a.m. Sunday landings, 11.30 p.m. to 8 a.m. Sunday take-offs; Winter 11.30 p.m. to 6.30 a.m. weekdays, 11.30 p.m. to 8 a.m. Sunday take-offs and landings. 34. In July 1990, the Department of Transport commenced an internal review of the restrictions on night flights. A new classification of aircraft and the development of a quota count system were the major focus of the review. As part of the review, the Department of Transport asked the Civil Aviation Authority to undertake further objective study of aircraft noise and sleep disturbance. The objectives of the review included “to continue to protect local communities from excessive aircraft noise at night” and “to ensure that the competitive influences affecting UK airports and airlines and the wider employment and economic implications are taken into account”. 35. The fieldwork for the study was carried out during the summer of 1991. Measurements of disturbance were obtained from 400 subjects living in the vicinity of Heathrow, Gatwick, Stansted and Manchester Airports. The findings were published in December 1992 as the “Report of a field study of aircraft noise and sleep disturbance” (“the 1992 sleep study”). It found that, once asleep, very few people living near airports were at risk of any substantial sleep disturbance due to aircraft noise and that, compared with the overall average of about eighteen nightly awakenings without any aircraft noise, even large numbers of noisy night-time aircraft movements would cause very little increase in the average person's nightly awakenings. It concluded that the results of the field study provided no evidence to suggest that aircraft noise was likely to cause harmful after-effects. It also emphasised, however, that its conclusions were based on average effects, and that some of the subjects of the study (2 to 3%) were over 60% more sensitive than average. 36. In January 1993, the government published a Consultation Paper regarding a proposed new scheme for regulating night flights at the three main airports serving London: Heathrow, Gatwick and Stansted. The Consultation Paper set up four objectives of the review being undertaken (so far as Heathrow was concerned): to revise and update the existing arrangements; to introduce a common night flights regime for the three airports; to continue to protect local communities from excessive aircraft noise levels at night; and to ensure that competitive influences and the wider employment and economic implications were taken into account. In a section entitled “Concerns of local people”, the Consultation Paper referred to arguments that night flights should be further restricted or banned altogether. In the authors' view, the proposals struck a fair balance between the different interests and did “protect local people from excessive aircraft noise at night”. In considering the demand for night flights, the Consultation Paper made reference to the fact that, if restrictions on night flights were imposed in the United Kingdom, certain flights would not be as convenient or their costs would be higher than those that competitors abroad could offer, and that passengers would choose alternatives that better suited their requirements. 37. It also stated that various foreign operators were based at airports with no night restrictions, which meant that they could keep prices down by achieving a high utilisation of aircraft, and that this was a crucial factor in attracting business in what was a highly competitive and price-sensitive market. 38. Further, the Consultation Paper stated that both regular and charter airlines believed that their operations could be substantially improved by being allowed more movements during the night period, especially landings. It also indicated that charter companies required the ability to operate in the night period, as they operated in a highly competitive, price-sensitive market and needed to contain costs as much as possible. The commercial viability of their business depended on high utilisation of their aircraft, which typically required three rotations a day to nearer destinations, and this could only be fitted in by using movements at night. 39. Finally, as regards night flights, the Consultation Paper referred to the continuing demand for some all-cargo flights at night carrying mail and other time-sensitive freight such as newspapers and perishable goods, and pointed to the fact that all-cargo movements were banned, whether arriving or departing, for much of the day at Heathrow Airport. 40. The Consultation Paper referred to the 1992 sleep study, noting that it had found that the number of disturbances caused by aircraft noise was so small that it had a negligible effect on overall normal disturbance rates, and that disturbance rates from all causes were not at a level likely to affect people's health or well-being. 41. The Consultation Paper further stated that, in keeping with the undertaking given in 1988 not to allow a worsening of noise at night, and ideally to reduce it, it was proposed that the quota for the next five years based on the new system should be set at a level such as to keep overall noise levels below those in 1988. 42. A considerable number of responses to the Consultation Paper were received from trade and industry associations with an interest in air travel (including the International Air Transport Association (IATA), the Confederation of British Industry and the London and Thames Valley Chambers of Commerce) and from airlines, all of which emphasised the economic importance of night flights. Detailed information and figures were provided by the associations and the airlines to support their responses. 43. On 6 July 1993 the Secretary of State for Transport announced his intention to introduce, with effect from October 1993, a quota system of night flying restrictions, the stated aim of which was to reduce noise at the three main London airports, which included Heathrow (“the 1993 Scheme”). 44. The 1993 Scheme introduced a noise quota scheme for the night quota period. Under the noise quota scheme each aircraft type was assigned a “quota count” between 0.5 QC (for the quietest) and 16 QC (for the noisiest). Each airport was then allotted a certain number of quota points, and aircraft movements had to be kept within the permitted points total. The effect of this was that, under the 1993 Scheme, rather than a maximum number of individual aircraft movements being specified, aircraft operators could choose within the noise quota whether to operate a greater number of quieter aeroplanes or a lesser number of noisier aeroplanes. The system was designed, according to the 1993 Consultation Paper, to encourage the use of quieter aircraft by making noisier types use more of the quota for each movement. 45. The 1993 Scheme defined “night” as the period between 11 p.m. and 7 a.m., and further defined a “night quota period” from 11.30 p.m. to 6 a.m., seven days a week, throughout the year, when the controls were strict. During the night, operators were not permitted to schedule the noisier types of aircraft to take off (aircraft with a quota count of 8 QC or 16 QC) or to land (aircraft with a quota count of 16 QC). During the night quota period, aircraft movements were restricted by a movements limit and a noise quota, which were set for each season (summer and winter). 46. The 1993 Consultation Paper had proposed a rating of 0 QC for the quietest aircraft. This would have allowed an unlimited number of these aircraft to fly at night, and the government took account of objections to this proposal in deciding to rate the quietest aircraft at 0.5 QC. Otherwise, the 1993 Scheme was broadly in accordance with the proposals set out in the 1993 Consultation Paper. 47. The local authorities for the areas around the three main London airports sought judicial review of the Secretary of State's decision to introduce the 1993 Scheme, making four consecutive applications for judicial review and appealing twice to the Court of Appeal (see paragraphs 80-83 below). As a result of the various judgments delivered by the High Court and Court of Appeal, the government consulted on revised proposals in October and November 1993; commissioned a study by ANMAC (the Aircraft Noise Monitoring Advisory Committee of the Department of the Environment, Transport and the Regions (DETR) formerly the Department of Transport) in May 1994 into ground noise at night at Heathrow, Gatwick and Stansted Airports; added to the quota count system an overall maximum number of aircraft movements; issued a further Consultation Paper in March 1995 and issued a supplement to the March 1995 Consultation Paper in June 1995. 48. The June 1995 supplement stated that the Secretary of State's policies and the proposals based on them allowed more noise than was experienced from actual aircraft movements in the summer of 1988, and acknowledged that this was contrary to government policy, as expressed in the 1993 Consultation Paper. As part of the 1995 review of the 1993 Scheme, the government reviewed the Civil Aviation Authority reports on aircraft noise and sleep disturbance, including the 1992 sleep study. The DETR prepared a series of papers on night arrival and departure statistics at Heathrow, Gatwick and Stansted Airports, scheduling and curfews in relation to night movements, runway capacity between 6 a.m. and 7 a.m., Heathrow night arrivals for four sample weeks in 1994, and Heathrow night departures for four sample weeks in 1994. The DETR also considered a paper prepared by Heathrow Airport Limited on the implications of a prohibition on night flights between 12 midnight and 5.30 a.m. 49. On 16 August 1995 the Secretary of State for Transport announced that the noise quotas and all other aspects of the night restrictions regime would remain as previously announced. In July 1996, the Court of Appeal confirmed the lawfulness of the 1993 Scheme, as it had been amended (see paragraphs 82-83 below). 50. The movement limits for Heathrow under the 1993 Scheme, introduced as a consequence of the legal challenges in the domestic courts, were set at 2,550 per winter season from 1994/1995 to 1997/1998, and 3,250 per summer season from 1995 to 1998 (the seasons being deemed to change when the clocks changed from Greenwich Mean Time (GMT) to British Summer Time (BST)). The noise quotas for Heathrow up to the summer of 1998 were set at 5,000 for each winter season and 7,000 for each summer season. Flights involving emergencies were excluded from the restrictions. The number of movements permitted during the night quota period (i.e. from 11.30 p.m. to 6 a.m.) remained at about the same level as between 1988 and 1993. At the same time, the number of movements permitted during the night period (i.e. from 11 p.m. to 7 a.m.) increased under the 1993 Scheme due to the reduction in the length of the night quota period. 51. In September 1995, a trial was initiated at Heathrow Airport of modified procedures for early morning landings (those between 4 a.m. and 6 a.m.). The aim of the trial, which was conducted by National Air Traffic Services Limited on behalf of the DETR, was to help alleviate noise over parts of central London in the early morning. An interim report, entitled “Assessment of revised Heathrow early mornings approach procedures trial”, was published in November 1998. 52. In December 1997, a study, commissioned by the DETR and carried out by the National Physical Laboratory gave rise to a report, “Night noise contours: a feasibility study”, which was published the same month. The report contained a detailed examination of the causes and consequences of night noise, and identified possible areas of further research. It concluded that there was not enough research evidence to produce “scientifically robust night contours that depict levels of night-time annoyance”. 53. In 1998, the government conducted a two-stage consultation exercise on night restrictions at Heathrow, Gatwick and Stansted Airports. In February 1998, a Preliminary Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted was published. The Preliminary Consultation Paper stated that most night movements catered primarily for different needs from those that took place during the daytime, and set out reasons for allowing night flights. These were essentially the same as those given in the 1993 Consultation Paper. 54. In addition, the Preliminary Consultation Paper referred to the fact that air transport was one of the fastest growing sectors of the world economy and contained some of the United Kingdom's most successful firms. Air transport facilitated economic growth, world trade, international investment and tourism, and was of particular importance to the United Kingdom because of its open economy and geographical position. The Consultation Paper went on to say that permitting night flights, albeit subject to restrictions, at major airports in the United Kingdom had contributed to this success. 55. The government set movement limits and noise quotas for winter 1998/99 at the same level as for the previous winter, in order to allow adequate time for consultation. 56. The British Air Transport Association (BATA) commissioned a report from Coopers & Lybrand into the economic costs of maintaining the restrictions on night flights. The report was published in July 1997 and was entitled “The economic costs of night flying restrictions at the London airports”. The report concluded that the economic cost of the then current restrictions being maintained during the period 1997/1998 to 2002/2003 was about 850 million pounds sterling (GBP). BATA submitted the report to the government when it responded to the Preliminary Consultation Paper. 57. On 10 September 1998 the Government announced that the movement limits and noise quotas for summer 1999 would be the same as for summer 1998. 58. In November 1998, the government published the second stage Consultation Paper on night restrictions at Heathrow, Gatwick and Stansted. The Consultation Paper stated that it had been the view of successive governments that the policy on night noise should be firmly based on research into the relationship between aircraft noise and interference with sleep and that, in order to preserve the balance between the different interests, this should continue to be the basis for decisions. The Consultation Paper indicated that “interference with sleep” was intended to cover both sleep disturbance (an awakening from sleep, however short) and sleep prevention (a delay in first getting to sleep at night, and awakening and then not being able to get back to sleep in the early morning). The Consultation Paper stated that further research into the effect of aircraft noise on sleep had been commissioned, which would include a review of existing research in the United Kingdom and abroad, and a trial to assess methodology and analytical techniques to determine whether to proceed to a full-scale study of either sleep prevention or total sleep loss. 59. The Consultation Paper repeated the finding of the 1992 sleep study that for noise events in the range of 90-100 dBA SEL (80-95 dBA Lmax), the likelihood of the average person being awakened by an aircraft noise event was about 1 in 75. It acknowledged that the 1 in 75 related to sleep disturbance, and not to sleep prevention, and that while there was a substantial body of research on sleep disturbance, less was known about sleep prevention or total sleep loss. 60. The Consultation Paper stated that the objectives of the current review were, in relation to Heathrow, to strike a balance between the need to protect local communities from excessive aircraft noise levels at night and to provide for air services to operate at night where they were of benefit to the local, regional and national economy; to ensure that the competitive factors affecting United Kingdom airports and airlines and the wider employment and economic implications were taken into account; to take account of the research into the relationship between aircraft noise and interference with sleep and any health effects; to encourage the use of quieter aircraft at night; and to put in place at Heathrow, for the night quota period (11.30 p.m. to 6 a.m.), arrangements which would bring about further improvements in the night noise climate around the airport over time and update the arrangements as appropriate. 61. The Consultation Paper stated that since the introduction of the 1993 Scheme, there had been an improvement in the noise climate around Heathrow during the night quota period, based on the total of the quota count ratings of aircraft counted against the noise quota, but that there had probably been a deterioration over the full night period between 11 p.m. and 7 a.m. as a result of the growth in traffic between 6 a.m. and 7 a.m. 62. The Consultation Paper found a strong customer preference for overnight long-haul services from the Asia-Pacific region. 63. The Consultation Paper indicated that the government had not attempted to quantify the aviation and economic benefits of night flights in financial terms. This was because of the difficulties in obtaining reliable and impartial data on passenger and economic benefits (some of which were commercially sensitive) and modelling these complex interactions. BATA had submitted a copy of the Coopers & Lybrand July 1997 report with its response to the Preliminary Consultation Paper, and the Consultation Paper noted that the report estimated the value of an additional daily long-haul scheduled night flight at Heathrow to be GBP 20 million to GBP 30 million per year, over half of which was made up of airline profits. The Consultation Paper stated that the financial effects on airlines were understood to derive from estimates made by a leading United Kingdom airline. Other parts of the calculation reflected assumptions about the effects on passengers and knock-on effects on other services, expressed in terms of an assumed percentage of the assumed revenue earned by these services. The Consultation Paper stated that the cost of restricting existing night flights more severely might be different, and that BATA's figures took no account of the wider economic effects which were not captured in the estimated airline and passenger impacts. 64. The Consultation Paper stated that, in formulating its proposals, the government had taken into account both BATA's figures and the fact that it was not possible for the government to test the estimates or the assumptions made by BATA. Any value attached to a “marginal” night flight had to be weighed against the environmental disadvantages. These could not be estimated in financial terms, but it was possible, drawing on the 1992 sleep study, to estimate the number of people likely to be awakened. The Consultation Paper concluded that, in forming its proposals, the government must take into account, on the one hand, the important aviation interests involved and the wider economic considerations. It seemed clear that United Kingdom airlines and airports would stand to lose business, including in the daytime, if prevented by unduly severe restrictions from offering limited services at night, that users could also suffer, and that the services offered by United Kingdom airports and airlines would diminish, and with them the appeal of London and the United Kingdom more generally. On the other hand, these considerations had to be weighed against the noise disturbance caused by night flights. The proposals made in the Consultation Paper aimed to strike a balance between the different interests and, in the government's view, would protect local people from excessive aircraft noise at night. 65. The main proposals in relation to Heathrow were: not to introduce a ban on night flights, or a curfew period; to retain the seasonal noise quotas and movement limits; to review the QC classifications of individual aircraft and, if this produced significant re-classifications, to reconsider the quota limits; to retain the QC system; to review the QC system before the 2002 summer season (when fleet compositions would have changed following completion of the compulsory phase-out in Europe of “Chapter 2” civil aircraft, with the exception of Concorde, which began in April 1995), in accordance with the policy of encouraging the use of quieter aircraft; to reduce the summer and winter noise quotas; to maintain the night period as 11 p.m. to 7 a.m. and the night quota period as 11.30 p.m. to 6 a.m.; to extend the restrictions on aircraft classified as QC8 on arrival or departure to match those for QC16; and to ban QC4 aircraft from being scheduled to land or take off during the night quota period from the start of the 2002 summer season (that is, after completion of the compulsory Chapter 2 phase-out). 66. The Consultation Paper stated that since the introduction of the 1993 Scheme, headroom had developed in the quotas, reducing the incentive for operators to use quieter aircraft. The reduction in summer and winter noise quotas to nearer the level of current usage was intended as a first step to restoring the incentive. The winter noise quota level under the 1993 Scheme was 5,000 QC points, and the average usage in the last two traffic seasons had been 3,879 QC points. A reduction to 4,000 was proposed. The summer noise quota level had been 7,000 points, and the average usage in the last two seasons was provisionally calculated at 4,472. A reduction to 5,400 was proposed. The new levels would remain in place until the end of the summer 2004 season, subject to the outcome of the QC review. 67. Part 2 of the Consultation Paper invited comments as to whether runway alternation should be introduced at Heathrow at night, and on the preferential use of Heathrow's runways at night. 68. On 10 June 1999 the government announced that the proposals in the November 1998 Consultation Paper would be implemented with effect from 31 October 1999, with limited modifications. With respect to Heathrow, the only modification was that there was to be a smaller reduction in the noise quotas than proposed. The quotas were set at 4,140 QC points for the winter, and 5,610 QC points for the summer. The effect of this was to set the winter quota at a level below actual usage in winter 1998/99. 69. The 1999 Scheme came into effect on 31 October 1999. 70. On 10 November 1999, a report was published on “The contribution of the aviation industry to the UK economy”. The report was prepared by Oxford Economic Forecasting and was sponsored by a number of airlines, airport operators and BATA, as well as the government. 71. On 23 November 1999 the government announced that runway alternation at Heathrow would be extended into the night “at the earliest practicable opportunity”, and issued a further Consultation Paper concerning proposals for changes to the preferential use of Heathrow's runways at night. 72. In December 1999, the DETR and National Air Traffic Services Limited published the final report of the ANMAC Technical Working Group on “Noise from Arriving Aircraft”. The purpose of the report was to describe objectively the sources of operational noise for arriving aircraft, to consider possible means of noise amelioration, and to make recommendations to the DETR. 73. In March 2000, the Department of Operational Research and Analysis (DORA) published a report, prepared on behalf of the DETR, entitled “Adverse effects of night-time aircraft noise”. The report identified a number of issues for possible further research, and was intended to form the background to any future United Kingdom studies of night-time aircraft noise. The report stated that gaps in knowledge had been identified, and indicated that the DETR was considering whether there was a case for a further full-scale study on the adverse effects of night-time aircraft noise, and had decided to commission two further short research studies to investigate the options. These studies were commissioned in the autumn of 1999, before the publication of the DORA report. One is a trial study to assess research methodology. The other is a social survey the aims of which included an exploration of the difference between objectively measured and publicly received disturbance due to aircraft noise at night. Both studies are being conducted by university researchers. 74. A series of noise mitigation and abatement measures is in place at Heathrow Airport, in addition to restrictions on night flights. These include the following: aircraft noise certification to reduce noise at source; the compulsory phasing out of older, noisier jet aircraft; noise preferential routes and minimum climb gradients for aircraft taking off; noise abatement approach procedures (continuous descent and low power/low drag procedures); limitation of air transport movements; noise-related airport charges; noise insulation grant schemes; and compensation for noise nuisance under the Land Compensation Act 1973. 75. The DETR and the management of Heathrow Airport conduct continuous and detailed monitoring of the restrictions on night flights. Reports are provided each quarter to members of the Heathrow Airport Consultative Committee, on which local government bodies responsible for areas in the vicinity of Heathrow Airport and local residents' associations are represented. | The applicants, all of whom lived or had lived close to Heathrow airport, submitted that United Kingdom Government policy on night flights at Heathrow airport had given rise to a violation of their rights under Article 8 of the Convention. They alleged in particular that their health had suffered as a result of regular sleep interruptions caused by night-time planes. They also claimed that they had been denied an effective domestic remedy for this complaint. |
1,074 | Right to respect for private and family life, home and correspondence (Article 8 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, Mr K.S. and his wife Mrs M.S., were born in 1939 and 1942 respectively and live in Lauf. A. The background to the case 6. In 2006 the German secret service ( Bundesnachrichtendienst ) bought a data carrier from a certain K. for a considerable amount of money. The data carrier contained financial data from the Liechtenstein L. Bank relating to 800 people. K., who had formerly been an employee of the L. Bank, had illegally copied the data. The data carrier was submitted to the German tax investigation authorities, which subsequently instigated proceedings against, inter alia, the applicants, in relation to tax evasion crimes. B. The search warrant and house search 7. On 10 April 2008 the Bochum District Court (“the District Court”), following an application from the Bochum prosecutor ’ s office, issued a search warrant in respect of the home of the applicants, who were suspected of having committed tax evasion between 2002 and 2006. The search warrant allowed the seizure of papers and other documents concerning the applicants ’ capital, both inside and outside Germany, especially documents concerning information on foundations and any documents that could help to determine the true tax liability of the applicants since 2002. 8. The search warrant indicated that, in the course of investigations against another suspect, the prosecution had obtained information that the applicants had established the “K. Foundation” on 17 January 2000 and the “T.U. S.A.” on 14 June 2000. The applicants were suspected of having made financial investments via these two associations with the L. Bank in Liechtenstein, for which they were liable for tax in Germany. According to the search warrant, the applicants had failed to declare about 50,000 euros (EUR) of the yearly interest accrued from the capital of both the K. Foundation and T.U. S.A. in their tax returns for the years 2002 to 2006. It indicated that the applicants had evaded tax payments of EUR 16,360 in 2002, EUR 24,270 in 2003, EUR 22,500 in 2004, EUR 18,512 in 2005 and EUR 18,000 in 2006. The search warrant stated that the house search was urgently needed in order to find further evidence and that, weighing the seriousness of the alleged crimes against the constitutional rights of the applicants, the house search was proportionate. 9. On 23 September 2008 the applicants ’ flat was searched and one envelope containing L. Bank documents and five computer files were seized. C. Proceedings before the Bochum District Court 10. The applicants appealed against the search warrant. They argued that the warrant had not been granted in accordance with the law. It had been based on material which had been acquired in breach of international law, especially the European Convention on Mutual Assistance in Criminal Matters of 20 April 1959 and the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime of 8 November 1990, because the data had been stolen from the L. Bank and had been bought by the secret service. The acquisition of the data had also violated domestic law, as the secret service had no authorisation to obtain tax data. In fact, such an act was a criminal offence under German law, as it infringed section 17(1) and section 17(2)(2) of the Unfair Competition Act (“divulgence of official secrets” ( Geheimnisverrat )). Furthermore, the secret service was not authorised to forward tax data to the financial authorities and the prosecution, as this infringed the German legal principle of separation of the secret service and the police/prosecution ( Trennungsprinzip ). 11. On 8 April 2009 the Bochum District Court dismissed the appeal. It was of the view that the house search had been legal as it had been based on a lawful search warrant. The court had no doubt that it had been lawful to base the search warrant on the information contained in the Liechtenstein data carrier, as, in its view, the data had neither been seized in direct violation of international law nor by circumventing international treaties. 12. The District Court was also of the view that the search warrant in question could be issued on the basis of the information in the data carrier, as the secret service had only played a passive role in acquiring it. According to the court, there was no indication that the secret service had incited a third person to steal the data, and it had merely accepted the data from a third person when this person had offered it. The fact that the secret service might have remunerated the seller did not, in the court ’ s view, change the fact that the secret service had only played a passive role. In the court ’ s opinion, it was within the secret service ’ s remit to acquire the data carrier in the prescribed way and hand the data over to the prosecution, as the data carrier contained 9,600 sets of data concerning international cash flows. D. Proceedings before the Bochum Regional Court 13. On 7 August 2009 the Bochum Regional Court dismissed the applicants ’ appeal. It held that the search warrant had been lawful, even if it was true that the German authorities had infringed domestic criminal law in obtaining the evidence. Even assuming that the German authorities might have committed the criminal offences of acting as an “accessory to a criminal offence” ( Begünstigung, Article 257 § 1 of the German Criminal Code) and an “accessory to the divulgence of official secrets” ( Beihilfe zum Geheimnisverrat, section 17(1) and section 17(2)(2) of the Unfair Competition Act, in conjunction with Article 27 of the German Criminal Code) in buying the Liechtenstein data from K., and that K. might have committed the offence of “industrial espionage” ( Betriebsspionage, section 17(2)(1) of the Unfair Competition Act), it considered the search warrant to have been lawful. With regard to the applicants ’ allegation that the data had been acquired in breach of international law, the Regional Court doubted any such breach. 14. As regards the question whether illegally obtained evidence could be used in criminal proceedings, the Regional Court referred to a decision of the same court of 22 April 2008, where it had held in a similar case and with regard to the same data carrier that the interest in prosecuting the suspects outweighed the possible infringements of criminal law, as the principal criminal act of “data theft” had been committed by a third party and not by the German authorities. According to the well-established case-law of the Federal Court of Justice, evidence that had been illegally acquired by a third party could generally be used in criminal proceedings, unless it had been acquired through coercion or force. It also had to be considered that the use of the “stolen” data had not infringed the core of the applicants ’ private sphere, but their business affairs. Furthermore, the “data theft” had not primarily infringed the rights of the applicants, but the data-protection rights of the bank from which it had been “stolen”. Thus, the Liechtenstein data was not excluded as evidence and the search order could be based on it. As to the presumed breach of international law, the court added that such a breach would not lead to the unlawfulness of the search warrant, firstly because international law did not grant the applicants any personal rights and secondly because the use of the evidence did not in itself constitute a breach of international law. E. Proceedings before the Federal Constitutional Court 15. On 11 September 2009 the applicants lodged a constitutional complaint with the Federal Constitutional Court. They were of the view that the Regional Court and the District Court should have decided that the search warrant had not been in accordance with the law, as the use of the Liechtenstein data as a basis for a search warrant had violated international treaties and the sovereignty of Liechtenstein, which had protested against the use of the data. 16. Furthermore, they argued that their right to respect for their home under Article 13 of the Basic Law had been infringed, as the search warrant had been based on evidence that had been acquired by the secret service and passed on to the prosecution in violation of domestic law. The data purchase from K. had constituted a criminal act. Moreover, the secret service had no authority under German law to purchase such data. Furthermore, the transfer of the Liechtenstein data from the secret service to the financial authorities and the prosecution had violated the principle of the separation of the secret service and the prosecution in Germany. The infringement of domestic law had been so severe that the criminal courts should have come to the conclusion that the Liechtenstein data could not have formed the basis of a search warrant. They would thus have been obliged to declare the search warrant illegal. 17. On 9 November 2010 the Federal Constitutional Court dismissed the constitutional complaint as manifestly ill-founded. It found that the fact that the search warrant had been based on the Liechtenstein data did not infringe Article 13 of the Basic Law. 18. The Federal Constitutional Court reiterated that there was no absolute rule that evidence which had been acquired in violation of procedural rules could never be used in criminal proceedings (compare paragraph 2 8 below). The court further pointed out that it had to be borne in mind that the case at hand did not concern the question of whether evidence could be admitted in a criminal trial, but only concerned the preliminary question of whether evidence that might have been acquired in breach of procedural rules could form the basis of a search warrant in criminal investigation proceedings. Even if evidence was considered inadmissible in criminal proceedings, this did not automatically mean that the same was true for all stages of criminal investigations. 19. Furthermore, the court reiterated that it was not its role to substitute itself for the authorities in the interpretation and application of domestic law, but to review, in the light of the Basic Law, the decisions taken by the authorities in the exercise of their margin of appreciation. 20. In applying these general principles to the case at hand, the Federal Constitutional Court ruled, at the outset, that it was not necessary to decide upon the question whether the acquisition of the data had been in breach of national or international law or violated the principle of the separation of the secret service and the prosecution in Germany, as the Regional Court had departed in its decision from the applicants ’ allegation that the evidence might in fact have been acquired in breach of domestic and international law, including criminal law. 21. The Federal Constitutional Court found that the fact that the Regional Court based its legal assessment on the assumption that the acquisition of the data had been in breach of domestic and/or international law was not arbitrary and hence could not be found to be in violation of Article 13 of the Basic Law. Its finding that the applicants could not invoke international law in their favour only showed a different legal opinion without disregarding the applicants ’ basic rights. Furthermore, the Federal Constitutional Court considered reasonable the District and Regional Court ’ s legal assessment that the principle of separation of the secret service and the prosecution had not been infringed, as the facts of the case did not show that the secret service had either ordered or coordinated the “data theft”, but had been offered the data on K. ’ s own initiative. Acquiring data in such a way and passing it on to the prosecution could not violate the principle of separation, and hence could not render a search warrant unconstitutional. 22. With regard to the Regional Court ’ s finding that the search order could be based on the Liechtenstein data the Federal Constitutional Court found that the Regional Court ’ s legal assessment sufficiently took into account the applicants ’ basic rights as the Regional Court had departed from the applicants ’ allegation that the evidence had been obtained in breach of domestic law and thus based its decision on, what was, for the applicants, the best possible assumption. 23. The Federal Constitutional Court further considered that the Regional Court had struck a fair balance between the different interests at stake. The alleged breach of national and/or international law did not entail an imperative prohibition to use the evidence in the proceedings at issue. Furthermore, the Regional Court had rightly pointed out that the data did not relate to the core area of the applicants ’ private life, but to their business activities. It had recognized the decisive interest at stake, namely the applicants ’ right to inviolability of their home, and took it sufficiently into account, as nothing showed that German authorities purposely and systematically breached international or domestic law in obtaining the data carrier. F. Criminal proceedings before the Nuremberg District Court 24. On 2 August 2012 the Nuremberg District Court acquitted the applicants of the charges of tax evasion, finding that it had not been proven beyond reasonable doubt that the capital of the foundation in question had been invested in an interest-bearing way. | This case concerned a search of a couple’s home because they were suspected of tax evasion. The proceedings against them had been triggered when information about their assets held in a Liechtenstein bank had been illegally copied by an employee of the bank and sold to the German secret services. The applicants notably complained that their home had been searched on the basis of a warrant issued on the strength of evidence which had been obtained in breach of domestic and international law. |
842 | null | THE CIRCUMSTANCES OF THE CASE 1. The alleged interception of communications 5. The applicants alleged that in the 1990s the Ministry of Defence operated an Electronic Test Facility (“ETF”) at Capenhurst, Cheshire, which was built to intercept 10,000 simultaneous telephone channels coming from Dublin to London and on to the continent. Between 1990 and 1997 the applicants claimed that the ETF intercepted all public telecommunications, including telephone, facsimile and e-mail communications, carried on microwave radio between the two British Telecom ’ s radio stations (at Clwyd and Chester), a link which also carried much of Ireland ’ s telecommunications traffic. During this period the applicant organisations were in regular telephone contact with each other and also providing, inter alia, legal advice to those who sought their assistance. They alleged that many of their communications would have passed between the British Telecom radio stations referred to above and would thus have been intercepted by the ETF. 2. Complaint to the Interception of Communications Tribunal (“ICT”) 6. On 9 September 1999, having seen a television report on the alleged activities of the ETF, the applicant organisations requested the Interception of Communications Tribunal (“the ICT”: see paragraphs 2 8 -3 0 below) to investigate the lawfulness of any warrants which had been issued in respect of the applicants ’ communications between England and Wales and Ireland. On 19 October 1999 an official of the ICT confirmed that an investigation would proceed and added: “ ... I am directed to advise you that the Tribunal has no way of knowing in advance of an investigation whether a warrant exists in any given case. The Tribunal investigates all complaints in accordance with section 7 of the [Interception of Communications Act 1985: ‘ the 1985 Act ’, see paragraphs 16 -33 below] establishing whether a relevant warrant or relevant certificate exists or had existed and, if so, whether there has been any contravention of sections 2 to 5. If ... the Tribunal concludes that there has been a contravention of sections 2 to 5, the Tribunal may take steps under sections 7(4), (5) and (6). In any case where there is found to have been no contravention, the Tribunal is not empowered to disclose whether or not authorised interception has taken place. In such instances, complainants are advised only that there has been no contravention of sections 2 to 5 in relation to a relevant warrant or a relevant certificate.” 7. By a letter dated 16 December 1999 the ICT confirmed that it had thoroughly investigated the matter and was satisfied that there had been no contravention of sections 2 to 5 of the 1985 Act in relation to the relevant warrant or certificate. 3. Complaint to the Director of Public Prosecutions (“DPP”) 8. By a letter dated 9 September the applicants complained to the DPP of an unlawful interception, requesting the prosecution of those responsible. The DPP passed the matter to the Metropolitan Police for investigation. By a letter dated 7 October 1999 the police explained that no investigation could be completed until the ICT had investigated and that a police investigation might then follow if it could be shown that an unwarranted interception had taken place or if any of the other conditions set out in section 1(2)-(4) of the 1985 Act had not been met. The applicants pointed out, in their letter of 12 October 1999, that the vague, albeit statutory, response of the ICT would mean that they would not know whether a warrant had been issued or, if it had, whether it had been complied with. They would not, therefore, be in a position to make submissions to the police after the ICT investigation as to whether or not a criminal investigation was warranted. The applicants asked if, and if so how, the police could establish for themselves whether or not a warrant had been issued, so as to decide whether an investigation was required, and how the police would investigate, assuming there had been no warrant. 9. The DPP responded on 19 October 1999 that the police had to await the ICT decision, and the police responded on 9 November 1999 that the applicants ’ concerns were receiving the fullest attention, but that they were unable to enter into discussion on matters of internal procedure and inter-departmental investigation. 10. On 21 December 1999 the applicants wrote to the police pointing out that, having received the decision of the ICT, they still did not know whether or not there had been a warrant or whether there had been unlawful interception. The response, dated 17 January 2000, assured the applicants that police officers were making enquires with the relevant agencies with a view to establishing whether there had been a breach of section 1 of the 1985 Act and identifying the appropriate investigative authority. The police informed the applicants by a letter dated 31 March 2000 that their enquiries continued, and, by a letter dated 13 April 2000, that these enquiries had not revealed an offence contrary to section 1 of the 1985 Act. 4. Complaint to the Investigatory Powers Tribunal (“IPT”) 11. On 15 December 2000 the former statutory regime for the interception of communications was replaced by the Regulation of Investigatory Powers Act 2000 (see paragraphs 3 4 -3 9 below) and a new tribunal, the IPT, was created. 12. On 13 August 2001 the applicants began proceedings in the IPT against the security and intelligence agencies of the United Kingdom, complaining of interferences with their rights to privacy for their telephone and other communications from 2 October 2000 onwards ( British-Irish Rights Watch and others v. The Security Service and others, IPT/01/62/CH). The IPT, sitting as its President and Vice-President (a Court of Appeal and a High Court judge), had security clearance and was able to proceed in the light not just of open evidence filed by the defendant services but also confidential evidence, which could not be made public for reasons of national security. 13. On 9 December 2004 the IPT made a number of preliminary rulings on points of law. Although the applicants had initially formulated a number of claims, by the time of the ruling these had been narrowed down to a single complaint about the lawfulness of the “filtering process”, whereby communications between the United Kingdom and an external source, captured under a warrant pursuant to section 8(4) of the 2000 Act (which had replaced section 3(2) of the 1985 Act: see paragraphs 3 4-39 below), were sorted and accessed pursuant to secret selection criteria. The question was, therefore, whether “the process of filtering intercepted telephone calls made from the UK to overseas telephones ... breaches Article 8 § 2 [of the Convention] because it is not ‘ in accordance with the law ’ ”. 14. The IPT found that the difference between the warrant schemes for interception of internal and external communications was justifiable, because it was more necessary for additional care to be taken with regard to interference with privacy by a Government in relation to domestic telecommunications, given the substantial potential control it exercised in this field; and also because its knowledge of, and control over, external communications was likely to be much less extensive. 15. As to whether the law was sufficiently accessible and foreseeable for the purposes of Article 8 § 2, the IPT observed: “ The selection criteria in relation to accessing a large quantity of as yet unexamined material obtained pursuant to a s8(4) warrant (as indeed in relation to material obtained in relation to a s8(1) warrant) are those set out in s5(3). The Complainants ’ Counsel complains that there is no ‘ publicly stated material indicating that a relevant person is satisfied that the [accessing] of a particular individual ’ s telephone call is proportionate ’. But the Respondents submit that there is indeed such publicly stated material, namely the provisions of s6(l) of the Human Rights Act which requires a public authority to act compatibly with Convention rights, and thus, it is submitted, imposes a duty to act proportionately in applying to the material the s5(3) criteria. To that duty there is added the existence of seven safeguards listed by the Respondents ’ Counsel, namely (1) the criminal prohibition on unlawful interception (2) the involvement of the Secretary of State (3) the guiding role of the Joint Intelligence Committee ( ‘ JIC ’ ) (4) the Code of Practice (5) the oversight by the Interception of Communication Commissioner (whose powers are set out in Part IV of the Act) (6) the availability of proceedings before this Tribunal and (7) the oversight by the Intelligence and Security Committee, an all-party body of nine Parliamentarians created by the Intelligence Services Act 1994 ... It is plain that, although in fact the existence of all these safeguards is publicly known, it is not part of the requirements for accessibility or foreseeability that the precise details of those safeguards should be published. The Complainants ’ Counsel has pointed out that it appears from the Respondents ’ evidence that there are in existence additional operating procedures, as would be expected given the requirements that there be the extra safeguards required by s16 of the Act, and the obligation of the Secretary of State to ensure their existence under s15(1)(b). It is not suggested by the Complainants that the nature of those operating procedures be disclosed, but that their existence, i.e. something along the lines of what is in the Respondents ’ evidence, should itself be disclosed in the Code of Practice. We are unpersuaded by this. First, such a statement in the Code of Practice, namely as to the existence of such procedures, would in fact take the matter no further than it already stands by virtue of the words of the statute. But in any event, the existence of such procedures is only one of the substantial number of safeguards which are known to exist. Accessibility and foreseeability are satisfied by the knowledge of the criteria and the knowledge of the existence of those multiple safeguards. ... [F] oreseeability is only expected to a degree that is reasonable in the circumstances, and the circumstances here are those of national security ... In this case the legislation is adequate and the guidelines are clear. Foreseeability does not require that a person who telephones abroad knows that his conversation is going to be intercepted because of the existence of a valid s. 8(4) warrant. ... The provisions, in this case the right to intercept and access material covered by a s. 8(4) warrant, and the criteria by reference to which it is exercised, are in our judgment sufficiently accessible and foreseeable to be in accordance with law. The parameters in which the discretion to conduct interception is carried on, by reference to s. 5(3) and subject to the safeguards referred to, are plain from the face of the statute. In this difficult and perilous area of national security, taking into account both the necessary narrow approach to Article 8(2) and the fact that the burden is placed upon the Respondent, we are satisfied that the balance is properly struck. ” B. Relevant domestic law and practice 1. The Interception of Communications Act 1985 16. During the period at issue in this application the relevant legislation was sections 1-10 of the Interception of Communications Act 1985 (“the 1985 Act”), which came into force on 10 April 1986 and was repealed by the Regulation of Investigatory Powers Act 2000 (“the 2000 Act”). 17. Pursuant to section 1 of the 1985 Act, a person who intentionally intercepted a communication in the course of its transmission by post or by means of a public telecommunications system was guilty of an offence. A number of exceptions were made, the relevant one being a communication intercepted pursuant to a warrant issued by the Secretary of State under section 2 of the 1985 Act and in accordance with a certificate issued under section 3(2)(b) of the 1985 Act. (a) Warrants for interception (i) The three grounds for issuing a warrant 18. The Secretary of State ’ s power to issue a warrant under section 2 of the 1985 Act could be exercised only if he considered the warrant necessary: “(a) in the interests of national security; (b) for the purpose of preventing or detecting serious crime; or (c) for the purpose of safeguarding the economic well-being of the United Kingdom .” 19. The term “serious crime” was defined by section 10(3) of the Act as follows: “For the purposes of [the 1985 Act], conduct which constitutes or, if it took place in the United Kingdom, would constitute one or more offences shall be regarded as a serious crime if, and only if – (a) it involves the use of violence, results in substantial financial gain or is conduct by a large number of persons in pursuit of a common purpose; or (b) the offence, or one of the offences, is an offence for which a person who has attained the age of twenty-one and has no previous convictions could reasonably be expected to be sentenced to imprisonment for a term of three years or more.” 20. The scope of the term “national security” was clarified by the Commissioner appointed under the 1985 Act. In his 1986 report he stated ( § 27) that he had adopted the following definition: activities “which threaten the safety or well-being of the State, and which are intended to undermine or overthrow Parliamentary democracy by political, industrial or violent means”. 21. In determining whether a warrant was necessary for one of the three reasons set out in section 2(2) of the 1985 Act, the Secretary of State was under a duty to take into account whether the information which it was considered necessary to acquire could reasonably be acquired by other means (section 2(3)). In addition, warrants to safeguard the economic well-being of the United Kingdom could not be issued unless the information to be acquired related to the acts or intentions of persons outside the British Islands (section 2(4)). A warrant required the person to whom it was addressed to intercept, in the course of their transmission by post or by means of a public telecommunications system, such communications as were described in the warrant. (ii) The two types of warrant 22. Two types of warrant were permitted by section 3 of the 1985 Act. The first, a “section 3(1) warrant”, was a warrant that required the interception of: “(a) such communications as are sent to or from one or more addresses specified in the warrant, being an address or addresses likely to be used for the transmission of communications to or from– (i) one particular person specified or described in the warrant; or (ii) one particular set of premises so specified or described; and (b) such other communications (if any) as it is necessary to intercept in order to intercept communications falling within paragraph (a) above.” By section 10(1) of the 1985 Act, the word “person” was defined to include any organisation or combination of persons and the word “address” was defined to mean any postal or telecommunications address. 23. The second type of warrant, a “section 3(2) warrant”, was one that required the interception, in the course of transmission by means of a public telecommunications system, of: “ (i) such external communications as are described in the warrant; and (ii) such other communications (if any) as it is necessary to intercept in order to intercept such external communications as are so described ... ”. 24. When he issued a section 3(2) warrant, the Secretary of State was required to issue also a certificate containing a description of the intercepted material the examination of which he considered necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State ’ s economic well-being (section 3(2)(b)). A section 3(2) warrant could not specify an address in the British Islands for the purpose of including communications sent to or from that address in the certified material unless- “3(3) (a) the Secretary of State considers that the examination of communications sent to or from that address is necessary for the purpose of preventing or detecting acts of terrorism; and (b) communications sent to or from that address are included in the certified material only in so far as they are sent within such a period, not exceeding three months, as is specified in the certificate.” 25. Section 3(2) warrants could be issued only under the hand of the Secretary of State or a permitted official of high rank with the written authorisation of the Secretary of State. If issued under the hand of the Secretary of State, the warrant was valid for two months; if by another official, it was valid for two days. Only the Secretary of State could renew a warrant. If the Secretary of State considered that a warrant was no longer necessary in the interests of national security, to prevent or detect serious crime or to safeguard the State ’ s economic well-being, he was under a duty to cancel it (section 4). 26. The annual report of the Commissioner for 1986 explained the difference between warrants issued under section 3(1) and under section 3(2): “There are a number of differences ... But the essential differences may be summarised as follows: (i) Section 3(2) warrants apply only to external telecommunications; (ii) whereas section 3(1) warrants only apply to communications to or from one particular person ... or one particular set of premises, Section 3(2) warrants are not so confined; but (iii) at the time of issuing a Section 3(2) warrant the Secretary of State is obliged to issue a certificate describing the material which it is desired to intercept; and which he regards as necessary to examine for any of the purposes set out in Section 2(2). So the authority to intercept granted by the Secretary of State under Section 3(2) is limited not so much by reference to the target, as it is under section 3(1), but by reference to the material. It follows that in relation to Section 3(2) warrants, I have had to consider first, whether the warrant applies to external communications only, and, secondly, whether the certified material satisfies the Section 2(2) criteria. ... There is a further important limitation on Section 3(2) warrants. I have said that the authority granted by the Secretary of State is limited by reference to the material specified in the certificate, rather than the targets named in the warrants. This distinction is further underlined by Section 3(3) which provides that material specified shall not include the address in the British Islands for the purpose of including communications sent to or from that address, except in the case of counter-terrorism. So if, for example in a case of subversion the Security Service wishes to intercept external communications to or from a resident of the British Islands, he could not do so under a Section 3(2) warrant by asking for communications sent to or from his address to be included in the certified material. But it would be possible for the Security Service to get indirectly, through a legitimate examination of certified material, what it may not get directly. In such cases it has become the practice to apply for a separate warrant under Section 3(1) known as an overlapping warrant, in addition to the warrant under Section 3(2). There is nothing in the [1985 Act] which requires this to be done. But it is obviously a sound practice, and wholly consistent with the legislative intention underlying Section 3(3). Accordingly I would recommend that where it is desired to intercept communications to or from an individual residing in the British Islands, as a separate target, then in all cases other than counter-terrorism there should be a separate warrant under Section 3(1), even though the communications may already be covered by a warrant under Section 3(3). The point is not without practical importance. For the definition of “relevant warrant” and “relevant certificate” in Section 7(9) of the Act makes it clear that, while the Tribunal has power to investigate warrants issued under section 3(1) and certificates under section 3(2) where an address is specified in the certificate, it has no such power to investigate Section 3(2) warrants, where an address is not so certified.” (iii) Use and retention of information 27. Section 6 of the 1985 Act was entitled “Safeguards” and read as follows: “(1) Where the Secretary of State issues a warrant he shall, unless such arrangements have already been made, make such arrangements as he considers necessary for the purpose of securing- (a) that the requirements of subsections (2) and (3) below are satisfied in relation to the intercepted material; and (b) where a certificate is issued in relation to the warrant, that so much of the intercepted material as is not certified by the certificate is not read, looked at or listened to by any person. (2) The requirements of this subsection are satisfied in relation to any intercepted material if each of the following, namely- (a) the extent to which the material is disclosed; (b) the number of persons to whom any of the material is disclosed; (c) the extent to which the material is copied; and (d) the number of copies made of any of the material; is limited to the minimum that is necessary as mentioned in section 2 (2) above. (3) The requirements of this subsection are satisfied in relation to any intercepted material if each copy made of any of that material is destroyed as soon as its retention is no longer necessary as mentioned in section 2 (2) above.” (b) The Interception of Communications Tribunal (“ICT”) 28. Section 7 of the 1985 Act provided for a Tribunal to investigate complaints from any person who believed that communications sent by or to him had been intercepted. Its jurisdiction, so far as material, was limited to investigating whether there was or had been a “relevant warrant” or a “relevant certificate” and, where there was or had been, whether there had been any contravention of sections 2-5 of the 1985 Act in relation to that warrant or certificate. Section 7(9) read, in so far as relevant, as follows: “For the purposes of this section – (a) a warrant is a relevant warrant in relation to an applicant if – (i) the applicant is specified or described in the warrant; or (ii) an address used for the transmission of communications to or from a set of premises in the British Islands where the applicant resides or works is so specified; (b) a certificate is a relevant certificate in relation to an applicant if and to the extent that an address used as mentioned in paragraph (a)(ii) above is specified in the certificate for the purpose of including communications sent to or from that address in the certified material.” 29. The ICT applied the principles applicable by a court on an application for judicial review. If it found there had been a contravention of the provisions of the Act, it was to give notice of that finding to the applicant, make a report to the Prime Minister and to the Commissioner appointed under the Act and, where it thought fit, make an order quashing the relevant warrant, directing the destruction of the material intercepted and/or directing the Secretary of State to pay compensation. In other cases, the ICT was to give notice to the applicant stating that there had been no contravention of sections 2-5 of the Act. 30. The ICT consisted of five members, each of whom was required to be a qualified lawyer of not less than ten years standing. They held office for a five-year period and could be re-appointed. The decisions of the ICT were not subject to appeal. (c) The Commissioner 31. Section 8 provided that a Commissioner be appointed by the Prime Minister. He or she was required to be a person who held, or who had held, high judicial office. The Commissioner ’ s functions included the following: – to keep under review the carrying out by the Secretary of State of the functions conferred on him by sections 2-5 of the 1985 Act; – to give to the ICT all such assistance as it might require for the purpose of enabling it to carry out its functions; – to keep under review the adequacy of the arrangements made under section 6 for safeguarding intercepted material and destroying it where its retention was no longer necessary; – to report to the Prime Minister if there appeared to have been a contravention of sections 2-5 which had not been reported by the ICT or if the arrangements under section 6 were inadequate; – to make an annual report to the Prime Minister on the exercise of the Commissioner ’ s functions. This report had to be laid before the Houses of Parliament. The Prime Minister had the power to exclude any matter from the report if publication would have been prejudicial to national security, to the prevention or detection of serious crime or to the well-being of the United Kingdom. The report had to state if any matter had been so excluded. 32. In his first report as Commissioner, in 1992, Sir Thomas Bingham MR, as he then was, explained his own role as part of the safeguards inherent in the 1985 Act as follows: “The third major safeguard is provided by the Commissioner himself. While there is nothing to prevent consultation of the Commissioner before a warrant is issued, it is not the practice to consult him in advance and such consultation on a routine basis would not be practicable. So the Commissioner ’ s view is largely retrospective, to check that warrants have not been issued in contravention of the Act and that appropriate procedures were followed. To that end, I have visited all the warrant issuing departments and agencies named in this report, in most cases more than once, and discussed at some length the background to the warrant applications. I have also discussed the procedure for seeking warrants with officials at various levels in all the initiating bodies and presenting departments. I have inspected a significant number of warrants, some chosen by me at random, some put before me because it was felt that I should see them. Although I have described ... a number of instances in which mistakes were made or mishaps occurred, I have seen no case in which the statutory restrictions were deliberately evaded or corners knowingly cut. A salutary practice has grown up by which the Commissioner ’ s attention is specifically drawn to any case in which an error or contravention of the Act has occurred: I accordingly believe that there has been no such case during 1992 of which I am unaware.” Similar conclusions about the authorities ’ compliance with the law were drawn by all the Commissioners in their reports during the 1990s. 33. In each of the annual reports made under the 1985 Act the Commissioner stated that in his view the arrangements made under section 6 of the 1985 were adequate and complied with, without revealing what the arrangements were. In the 1989 Report the Commissioner noted at § 9 that there had been technological advances in the telecommunications field which had “necessitated the making of further arrangements by the Secretary of State for the safeguarding of material under section 6 of the [1985 Act]”. The Commissioner stated that he had reviewed the adequacy of the new arrangements. For the year 1990, the Commissioner recorded that, as a result of a new practice of the police disclosing some material to the Security Service, a further change in the section 6 arrangements had been required. The Commissioner said in the 1990 Report that he was “ satisfied with the adequacy of the new arrangements” (1990 Report at § 18). In the 1991 Report, the Commissioner stated that there had been some minor changes to the section 6 arrangements and confirmed that he was satisfied with the arrangements as modified ( § 29 of the 1991 Report ). In the 1993 Report, the Commissioner said at § 11: “ Some of the written statements of section 6 safeguards which I inspected required to be updated to take account of changes in the public telecommunications market since they had been drafted and approved. Other statements could, as it seemed to me, be improved by more explicit rules governing the circumstances and manner in which, and the extent to which, intercept material could be copied. It also seemed to me that it would be advantageous, where this was not already done, to remind all involved m handling intercept material on a regular basis of the safeguards to which they were subject, securing written acknowledgements that the safeguards had been read and understood. These suggestions appeared to be readily accepted by the bodies concerned. They did not in my view indicate any failure to comply with section 6 of the Act. ” In his first year as Commissioner, Lord Nolan reported the following on this issue of section 6 safeguards (1994 Report, § 6) : “ Like my predecessors, I have on each of my visits considered and discussed the arrangements made by the Secretary of State under section 6 for the purpose of limiting the dissemination and retention of intercepted material to what is necessary within the meaning of section 2. Each agency has its own set of such arrangements, and there are understandable variations between them. For example, the practical considerations involved in deciding what is necessary in the interests of national security, or the economic well-being of the United Kingdom (the areas with which the Security Service and the Secret Intelligence Service are almost exclusively concerned) are somewhat different from those involved in the prevention and detection of serious criminal offences (with which the police forces and HM Customs & Excise are almost exclusively concerned). I am satisfied that all of the agendas are operating within the existing approved safeguards under the terms of the arrangements as they stand ... ” 2. The Regulation of Investigatory Powers Act 2000 34. The 2000 Act came into force on 15 December 2000. The explanatory memorandum described the main purpose of the Act as being to ensure that the relevant investigatory powers were used in accordance with human rights. As to the first, interceptions of communications, the 2000 Act repealed, inter alia, sections 1-10 of the 1985 Act and provides for a new regime for the interception of communications. 35. The 2000 Act is designed to cover the purposes for which the relevant investigatory powers may be used, which authorities can use the powers, who should authorise each use of the power, the use that can be made of the material gained, judicial oversight and a means of redress for the individual. 36. A new Investigatory Powers Tribunal (“IPT”) assumed the responsibilities of the former ICT, of the Security Services Tribunal and of the Intelligence Services Tribunal. The Interception of Communications Commissioner continues to review the actions of the Secretary of State as regards warrants and certificates and to review the adequacy of the arrangements made for the execution of those warrants. He is also, as before, to assist the Tribunal. In addition, the Secretary of State is to consult about and to publish codes of practice relating to the exercise and performance of duties in relation to, inter alia, interceptions of communications. 37. Section 2(2) of the 200 0 Act defines interception as follows: “For the purposes of this Act, but subject to the following provisions of this section, a person intercepts a communication in the course of its transmission by means of a telecommunications system if, and only if, he – (a) so modifies or interferes with the system, or its operation, (b) so monitors transmissions made by means of the system, or (c) so monitors transmissions made by wireless telegraphy to or from apparatus comprised in the system, as to make some of all of the contents of the communication available, while being transmitted, to a person other than the sender or intended recipient of the communication.” 38. Section 5(2) of the 2000 Act provides that the Secretary of State shall not issue an interception warrant unless he believes that the warrant is necessary, inter alia, in the interests of national security, for the purpose of preventing or detecting serious crime or for the purpose of safeguarding the economic well-being of the United Kingdom and that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct. 39. In addition to the general safeguards specified in section 15 of the Act, section 16 provides additional safeguards in the case of certificated warrants (namely warrants for interception of external communications supported by a certificate). In particular, section 16(1) provides that intercepted material is to be read, looked at or listened to by the persons to whom it becomes available by virtue of the warrant to the extent only that it has been certified as material the examination of which is necessary for one of the above purposes and falls within subsection (2). Intercepted material falls within subsection (2) so far only as it is selected to be read, looked at or listened to otherwise than according to a factor which is referable to an individual who is known to be for the time being in the British Isles and has as its purpose, or one of its purposes, the identification of material in communications sent by that person, or intended for him. 40. In its Ruling of 9 December 2004 (see paragraphs 13-15 above), the IPT set out the following extracts from the Interception of Communications Code of Practice issued pursuant to s. 71 of the 2000 Act (“the Code of Practice”). Subparagraph 4(2) of the Code of Practice deals with the application for a s. 8(1) warrant as follows : “ An application for a warrant is made to the Secretary of State. .. Each application, a copy of which must be retained by the applicant, should contain the following information : • Background to the operation in question. • Person or premises to which the application relates (and how the person or premises feature in the operation). • Description of the communications to be intercepted, details of communications service provider(s) and an assessment of the feasibility of the interception operation where this is relevant. • Description of the conduct to be authorised as considered necessary in order to carry out the interception, where appropriate. • An explanation of why the interception is considered to be necessary under the provisions of section 5(3). • A consideration of why the conduct is to be authorised by the warrant is proportionate to what is sought to be achieved by that conduct. • A consideration of any unusual degree of collateral intrusion and why that intrusion is justified in the circumstances. In particular, where the communications in question might affect religious, medical or journalistic confidentiality or legal privilege, this must be specified in the application. • Where an application is urgent, supporting justification should be provided. • An assurance that all material intercepted will be handled in accordance with the safeguards required by section 15 of the Act. The IPT continued: “Applications for a s. 8(4) warrant are addressed in subparagraph 5 .2 of the Code of Practice : ‘ An application for a warrant is made to the Secretary of State ... each application, a copy of which must be retained by the applicant, should contain the following information : • Background to the operation in question [identical to the first bullet point in 4.2]. • Description of the communications ... [this is materially identical to the third bullet point in 4.1]. • Description of the conduct to be authorised, which must be restricted to the interception of external communications, or to conduct necessary in order to intercept those external communications, where appropriate [compare the wording of the fourth bullet in 4 .2]. • The certificate that will regulate examination of intercepted material. • An explanation of why the interception is considered to be necessary for one or more of the section 5(3) purposes [identical to the fifth bullet point in 4 .2]. • A consideration of why the conduct should be authorised by the warrant is proportionate. .. [identical to the sixth bullet point in 4 .2]. • A consideration of any unusual degree of collateral intrusion. .. [identical to the seventh bullet point in 4 .2]. • Where an application is urgent. .. [identical to the eighth bullet point in 4 .2]. • An assurance that intercepted material will be read, looked at or listened to only so far as it is certified, and it meets the conditions of sections 16(2) -16(6) of the Act. • An assurance that all material intercepted will be handled in accordance with the safeguards required by sections 15 and 16 of the Act [these last two bullets of course are the equivalent to the last bullet point in 4 .2]. ... By subparagraph 4(8), the s. 8(l) warrant instrument should include ‘ the name or description of the interception subject or of the set of premises in relation to which the interception is to take place ’ and by subparagraph 4(9) there is reference to the schedules required by s. 8(2) of [the 2000 Act]. The equivalent provision in relation to the format of the s. 8(4) warrant in subparagraph 5(9) does not of course identify a particular interception subject or premises, but requires inclusion in the warrant of a ‘ description of the communications to be intercepted ’ .” | The applicants, a British and two Irish civil liberties’ organisations, alleged that, between 1990 and 1997, their telephone, facsimile, e-mail and data communications, including legally privileged and confidential information, were intercepted by an Electronic Test Facility operated by the British Ministry of Defence. They had lodged complaints with the Interception of Communications Tribunal, the Director of Public Prosecutions and the Investigatory Powers Tribunal to challenge the lawfulness of the alleged interception of their communications, but to no avail. |
279 | (Suspected) terrorists | THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1983 and, at the time of the most recent communication from the parties to the Court, was detained in Odessa. Background information 7. In its report of 4 November 2015 the International Advisory Panel – an international body constituted by the Secretary General of the Council of Europe to assess the effectiveness of the investigations carried out by the Ukrainian authorities into the violent clashes during the Maidan demonstrations between 30 November 2013 and 21 February 2014 and events in Odessa in May 2014 – described the events in Odessa in the following terms: “2. In spring 2014, following the political changes in Ukraine, groups of protesters (variously referred to in this Report as ‘ pro-federalism ’ activists or as ‘ the pro ‑ federalists ’ ) took positions ranging from mere opposition to the newly formed government to claims for the federalisation of Ukraine, and even secession of certain regions and their further annexation to the Russian Federation. EuroMaidan activists, for their part, countered the pro-federalists by holding demonstrations in support of a united Ukraine (also referred to in this Report as ‘ the pro-unity ’ activists). ... 3. By May 2014 Odesa was unstable following numerous mass demonstrations, seizures of official buildings, incitements to violence and clashes between the pro ‑ federalism and pro-unity activists. On 2 May 2014 [major clashes between the pro-unity and pro-federalism activists and a fire at the Trade Union Building] occurred. ... 31. According to official statistics, as a result of the clashes on 2 May, 48 persons died (seven women and 41 men). Six persons died as a result of firearm injuries they had received during the clashes... and 42 died as a result of the fire in the Trade Union Building. Of those 42, 34 died as a direct result of the fire and eight died as a result of jumping or falling from a height ...” 8. The above events occurred against a background of events occurring in the Donetsk and Luhansk regions at around the same time. From the beginning of April 2014, armed groups started to seize official buildings there and announced the creation of self-proclaimed entities known as the “Donetsk People ’ s Republic” and the “Luhansk People ’ s Republic” (“DPR” and “LPR”). In response, on 14 April 2014 the Ukrainian government authorised the use of force against them in the legal form of an “anti ‑ terrorist operation” ( see Khlebik v. Ukraine, no. 2945/16, §§ 8-12, 25 July 2017). In a number of documents, including its declaration of 4 February 2015 concerning recognition of the jurisdiction of the International Criminal Court, the Parliament of Ukraine labelled the “DPR” and “LPR” terrorist organisations. 9. In late 2014 and early 2015 a series of explosions occurred in Odessa. They mainly targeted military facilities and buildings occupied by volunteers supporting the Ukrainian military ’ s war effort in the east of Ukraine. 10. According to the Government, the applicant is a member of Sut vremeni ( Суть времени, Essence of Time), a Russian nationalist movement with its headquarters in Moscow, Russia. The leader of the movement, Mr Kurginyan, commented on the applicant ’ s case and arrest ( see paragraphs 13 and 16 below) in a video presentation published on the movement ’ s website on 28 October 2015. Mr Kurginyan acknowledged that the applicant used to be a member of the movement but had left before the relevant events, and that all branches of the movement in Ukraine outside of the so-called “DPR” and “LPR” had been closed. They continued to operate, however, in the “DPR” and “LPR” and their members fought Ukrainian government forces there. Mr Kurginyan denied that there was any connection between the applicant, his group ’ s activities and the movement and suggested that the applicant was either a victim or a tool in a false flag operation organised by the Ukrainian security services. Explosion of 27 September 2015 and the applicant ’ s arrest 11. On 27 September 2015 an explosive device was placed outside the offices of the Odessa Regional Directorate of the Security Service of Ukraine ( Служба безпеки України, “the SBU”, Ukraine ’ s domestic security agency), where it later exploded. There were no casualties. 12. On the same day the SBU started a criminal investigation into the incident, which was classified as a terrorist act. The incident received considerable media coverage. 13. According to the official notification of suspicion and charges subsequently presented to the applicant ( see paragraphs 23 and 33 below), the explosion was organised by a group created and led by the applicant and composed of him and three co-conspirators, G., V. and Ch. They were driven by the desire to avenge the arrests by the Ukrainian security services of militants hostile to the Ukrainian government, and the victims of the events of 2 May 2014, for which they considered the Ukrainian authorities responsible. From July to September 2015 the applicant planned the explosion. Communicating with co-conspirators through encrypted messaging applications, he and the members of his group had the necessary equipment purchased and the explosive device made. They also scoped the location and developed a plan for the operation. Following the explosion of 27 September 2015 the applicant started planning a new attack: in the period from 27 September to 18 October 2015 he purchased a number of bomb-making ingredients and, in a flat he rented on Parkova Street in Odessa, started making additional explosives. He also instructed one of his co-conspirators, G., subsequently convicted of those acts ( see paragraph 32 below), to study techniques for making the explosives and the latter offered to use the gunpowder he owned to make the explosive devices. 14. On 1 October 2015, following a search of Ch. ’ s home and the retrieval of mobile telephone data, G. was identified as a suspect. Ch. himself could not be found. A search for him as a wanted person was commenced on 23 October 2015. 15. On 15 October 2015 a considerable amount of gunpowder was discovered in G. ’ s home. He was later convicted in a separate case ( see paragraph 32 below). A mobile telephone used to communicate with other members of the group was discovered and G. was questioned. On 19 October 2015 the investigating authority also showed him a line-up of photographs including the applicant ’ s. 16. At 10.30 a.m. on 19 October 2015 SBU officers arrested the applicant outside his home, in his car, on suspicion of organising the explosion. 17. According to the Government, at the time of the applicant ’ s arrest the officers introduced themselves and informed him of the reasons for the arrest and his rights, as they were required to do by the Code of Criminal Procedure ( see paragraph 45 below). According to the Government, the applicant resisted arrest. The applicant denied this and stated that, in actual fact, the officers had behaved in “an aggressive manner”. He also denied that the officers had informed him of the reasons for his arrest. 18. From 11 a.m. to 8.30 p.m. that day an SBU investigator conducted a search of the applicant ’ s home. A large number of mobile telephones, SIM cards, notes, ammunition, body armour, balaclavas and camouflage clothing were seized, as well as the lease for the Parkova Street flat and other items. The applicant was also searched and numerous items were seized, including a key ring holding a number of keys. 19. From 12.02 to 7 a.m. on 20 October 2015 the investigator conducted a search of the Parkova Street flat rented by the applicant. According to the report on that search, upon the conclusion of the previous search of his home the applicant had informed the investigator that explosives and other bomb-making equipment could be found at the rented flat. The report went on to state that the applicant had freely given his consent to the search. All the residents of the block of flats had been evacuated. The applicant, unlocking the flat with his own key, had entered the flat with an explosives specialist to make sure that there was no risk of explosion. In the course of the subsequent search, certain chemicals, radio, electric and other tools and hardware had been seized. 20. The search reports were signed by the applicant, his father (the first report), the flat ’ s owner (the second report), two attesting witnesses, the investigator and two other SBU officers, listing them all by full name and rank. They identified the dates, time of start and finish and the locations of the searches. 21. According to an expert report subsequently summarised in the charges against the applicant ( see paragraph 33 below), the explosives discovered had the potential to cause damage within at least a sixty-seven metre radius. 22. At 9 a.m. the same morning the investigator drew up an arrest report stating that he had arrested the applicant at 10.30 a.m. the previous day. The text of the report included a quote from the Code of Criminal Procedure concerning the grounds for the arrest of a person without a court order, setting out verbatim sub-paragraphs 1 and 2 of Article 208 § 1 of the Code ( see paragraph 45 below). The following words were underlined: “immediately after the offence, an eyewitness, including a victim, or a combination of clear signs on the body, clothing or at the scene of the event, indicate that this person has just committed an offence.” The report stated that the applicant was suspected of participation in a terrorist act committed on 27 September 2015, carried out as part of a conspiracy with G., V. and Ch. It also contained an explanation of the applicant ’ s rights, including the right to challenge the lawfulness of his arrest. 23. At 10.30 a.m. on 20 October 2015 the applicant was served with a formal notification of suspicion stating that he had, between July and September 2015, conspired with G., V. and Ch. and other unidentified individuals to plan and prepare a terrorist act, and that he had then, on 27 September 2015, committed a terrorist act, an offence under Article 258 § 2 of the Criminal Code ( see paragraph 49 below). 24. It is not contested that the applicant ’ s right to access a lawyer was respected only from 20 October 2015 after the arrest report had been drawn up and formal notification of suspicion served. The applicant ’ s placement in pre-trial detention 25. On the same day, 20 October 2015, the investigator applied to the Odessa Prymorsky District Court (“the District Court”) for the applicant to be placed in pre-trial detention. The application ran to six pages and the material in support of the application to 240 pages, which included search and expert examination reports, transcripts of interviews and results of identification by photographs conducted with other suspects and witnesses, including G. (his interview and the results of identification were dated 15 and 19 October 2015, see paragraph 15 above), messages between the applicant and other suspects exchanged through encrypted communication applications, and photographic identification reports. 26. On the same day the District Court held a hearing at which it heard submissions from the prosecutor, the applicant and his lawyer. It ordered his pre-trial detention for sixty days, to be counted from 10.30 a.m. on 19 October 2015. The reasons were formulated as follows: “The pre-trial investigation authorities suspect [the applicant] of commission of a [terrorist act] under the following circumstances: [there followed a seventeen-paragraph description of the facts as presented by the investigator, set out in paragraph 13 above] On 19 October 2015 [the applicant was arrested under the provision of the Code of Criminal Procedure allowing arrests without a court warrant]. On 20 October 2015 [the applicant was served with a formal notification of suspicion]. The investigator, with the prosecutor ’ s approval, has applied for the applicant ’ s placement in pre-trial detention, arguing that the applicant is suspected of committing a particularly grave offence, punishable by more than ten years ’ imprisonment ... if at liberty he may abscond from the pre-trial investigation authorities and the court, commit another criminal offence, continue his criminal activity, [or] exert unlawful influence on the victim, which indicates that it [would not be] possible to safeguard against those risks by less severe preventive measures. [... In] the course of the pre-trial investigation it has been established that there was a risk [that the applicant would abscond]. The need to prevent new attempts to abscond is grounds for applying pre-trial detention. Other, less restrictive, preventive measures would not ensure the applicant ’ s compliance with his [procedural obligations]. In the course of the hearing the prosecutor supported the investigator ’ s application ... [The applicant] and his lawyer objected ... Having examined the material on which the application is based, having examined the suspect, his lawyer ... having considered the prosecutor ’ s position, I come to the conclusion that the application must be granted for the following reasons. It can be seen from the criminal case material submitted that there is a reasonable suspicion that the applicant committed the offence [under the Criminal Code provision providing for the punishment of terrorist acts], which is punishable by more than ten years ’ imprisonment. The above-mentioned circumstances show that there are risks which give reason to believe that the suspect may breach the procedural obligations imposed on him by law. The aim of the imposition of pre-trial detention on [the applicant] is the prevention of attempts to abscond from the pre-trial investigation authorities or the court; destroy, conceal or spoil any of the items or documents that are of material importance for establishing the circumstances of the criminal offence; exert unlawful influence on the victim or the witnesses in the same criminal proceedings; obstruct the criminal proceedings and commit another criminal offence. The evidence for this is that [the applicant] committed a particularly grave offence ( доказами цього є те, що Грубник В.Ю. вчинив особливо тяжкий злочин ). In [imposing] pre-trial detention I take into account the weighty evidence pointing to the commission of the offence by the applicant, the severity of the punishment which he faces, his age and his state of health. I consider that the prosecutor, in the course of the hearing regarding the application for pre-trial detention, has submitted material sufficient to [support the opinion] that none of the less restrictive preventive measures would prevent the occurrence of the risks proven in the course of the hearing. There are none of the circumstances provided for by Article 183 § 2 of the Code of Criminal Procedure] that would prevent the application of pre-trial detention. In summary, based on the material submitted, I have come to the conclusion that less restrictive preventive measures may fail to ensure that the [applicant] conduct himself in an appropriate fashion. Also ( при цьому ), pursuant to Article 176 § 5 of the Code of Criminal Procedure, preventive measures less restrictive than pre-trial detention cannot be imposed on a person who is suspected of [the provision of the Criminal Code providing for the punishment of terrorist acts]. It is impossible to prevent the risks set out in the application by applying less restrictive preventive measures.” 27. On the same date the District Court also ordered the pre-trial detention of the other two suspects. 28. The applicant appealed to the Odessa Regional Court of Appeal (“the Court of Appeal”) arguing, in particular, that there had been a delay in the drawing up of his arrest report; that during that time the grounds for his arrest and his rights had not been explained to him; that there had been no grounds for an arrest without a court order since he had not been arrested immediately after the offence; that the evidence submitted by the investigator was insufficient to support a reasonable suspicion against him; that the District Court had not sufficiently taken into account his strong ties to the community; and that it had not properly examined the possibility of using a non-custodial preventive measure. In view of those arguments, the applicant asked the Court of Appeal to quash the detention order and dismiss the investigator ’ s application. He further argued that the statement in the detention order to the effect that he had “committed a particularly grave offence” was at odds with the principle of the presumption of innocence. 29. On 28 October 2015 the Court of Appeal upheld the detention order. In response to the applicant ’ s arguments it stated, in particular, that in the course of the hearing before the District Court it had been sufficiently proven that there was a reasonable suspicion against him and that there was a risk that he could abscond or obstruct the criminal proceedings. The Court of Appeal was of the opinion that the District Court had taken into account the particular seriousness of the offence of which the applicant was suspected, the severity of the punishment he faced, and the danger presented to the public by the offence of which he was suspected. It decided that no other preventive measure would be adequate in view of the risks he presented. 30. Concerning the grounds for the applicant ’ s arrest, the investigator ’ s application for pre-trial detention, the District Court ’ s and the Court of Appeal ’ s decisions all contained the same statement: “On 19 October 2015 [the applicant] was arrested under Article 208 of the Code of Criminal Procedure” ( see paragraph 45 below). Subsequent criminal proceedings 31. On 17 December 2015 the District Court extended the detention of the applicant and the other two suspects. No copy of the relevant detention order was provided to the Court. 32. On 9 February 2016 the proceedings against G. were split into a separate case. He pleaded guilty and on 29 March 2016 the District Court convicted him of participation in the creation of a terrorist group, commission of a terrorist act, preparation of terrorist acts, and unlawful possession of firearms. Reducing the sentence due to G. ’ s cooperation, the court convicted him to four and a half years ’ imprisonment. 33. On 11 March 2016, almost five months after his arrest, the charges against the applicant were amended. He was notified that he was accused of creation, leadership of and membership in of a terrorist group, unlawful fabrication of explosives, unlawful possession of firearms (two handguns, ammunition and a silencer), commission of a terrorist act, and preparation of new terrorist acts after the explosion at the SBU building. 34. On 30 March 2016 the District Court again extended the applicant ’ s detention. 35. On 8 April 2016 the Court of Appeal upheld that extension order. It pointed out that, according to the material provided by the prosecution, the suspect had organised clandestine activities, searched for material for the commission of terrorist acts, and ensured the safe movement of members of the terrorist group. Those elements indicated that, if the suspect were at liberty, there was a risk that he would commit new serious offences, abscond or interfere with the investigation. The court referred to Article 176 § 5 of the Code of Criminal Procedure, which precluded the granting of bail or imposition of other non-custodial preventive measures in respect of individuals suspected of or charged with certain terrorism-related or national security offences ( see paragraph 40 below). The court rejected the applicant ’ s argument to the effect that that provision was contrary to Article 5 of the Convention. It held that Article 5 provided that detention could be effected for the purpose of bringing an individual before the competent legal authority on reasonable suspicion of having committed an offence or if it was reasonably considered necessary to prevent his committing an offence or fleeing after having done so. The District Court had established the presence of exactly such risks in the case. 36. On 12 April 2016 the bill of indictment in respect of the applicant was transferred to the District Court for trial. 37. Subsequently the District Court extended the applicant ’ s detention on multiple occasions. According to the most recent information from the parties, on 3 October 2019 his detention was extended until 2 December 2019. 38. According to media reports, on 26 November 2019 the District Court extended the applicant ’ s detention until 25 January 2020 but on 29 December 2019 he was released and handed over to the so-called “DPR” as part of a large exchange of prisoners agreed through negotiations between Ukraine and Russia. RELEVANT DOMESTIC LAWConstitution of Ukraine 1996 Constitution of Ukraine 1996 Constitution of Ukraine 1996 39. Article 29, which is relevant to the case, reads as follows: “Every person has the right to freedom and personal inviolability. No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on the grounds and in accordance with the procedure established by law. In the event of an urgent necessity to prevent or stop a crime, bodies authorised by law may hold a person in custody as a temporary preventive measure, the reasonable grounds for which shall be verified by a court within seventy-two hours. The detained person shall be released immediately if he or she has not been provided, within seventy-two hours of the time of detention, with a reasoned court decision in respect of the holding in custody...” Code of Criminal Procedure 2012 40. Article 176 § 1 provides for the following preventive measures: ( i ) a personal undertaking of the defendant; (ii) a personal warranty of a third party; (iii) bail; (iv) house arrest; and (v ) pre-trial detention. The investigating judge or the court must reject an application for a preventive measure if the investigator or the prosecutor has not proven that there are sufficient grounds to believe that none of the more lenient preventive measures would be sufficient for the prevention of the established risk or risks. The most lenient preventive measure is a personal undertaking and the most severe is pre-trial detention (Article 176 § 3 ). Preventive measures are applied by the judge at the request of the investigator, on application by the prosecutor, or on application by the investigator approved by the prosecutor (Article 176 § 4). Article 176 § 5, added by the Act of 7 October 2014 (hereinafter also “the Bail Exclusion Clause”, see paragraph 50 below regarding its legislative history), provides that “preventive measures of a personal undertaking, a personal warranty, house arrest and bail may not be imposed on people who are suspected of or charged” with: ( i ) terrorism (Article 258 of the Criminal Code, see paragraph 49 below) and certain terrorism-related offences: creation of a terrorist group, recruitment for the purposes of terrorism, public appeals to commit a terrorist act and terrorism financing; (ii) certain offences against national security, such as treason, attacks on the territorial integrity of Ukraine, creation of an unlawful armed group, and so forth. 41. Article 177 § 1 provides that the purpose of preventive measures is to ensure compliance with procedural obligations and prevent the risk of the suspect or accused: ( i ) absconding from the pre-trial investigation authorities and/or the court; (ii ) destroying, concealing or spoiling any of the items or documents that are of essential importance for establishing the circumstances of the criminal offence; (iii ) exerting unlawful influence on the victim, witnesses, other suspects, the accused, expert...; (iv ) obstructing the criminal proceedings in any other way; (v ) committing another criminal offence or continuing the criminal offence of which he or she is suspected or accused. Article 177 § 2 provides that a preventive measure can be applied provided that there is a reasonable suspicion that the person has committed a criminal offence and there are risks giving sufficient grounds for the judge to believe that the suspect, accused or convicted person could commit the actions specified in Article 177 § 1. 42. Article 183 defines pre-trial detention as an “exceptional” preventive measure which can only be applied where the prosecutor has proven that no less restrictive preventive measure would prevent the risks set out in Article 177 of the Code ( see paragraph 41 above). Moreover, it provides that only the categories of defendants explicitly mentioned in paragraph 2 of that Article can be subjected to pre-trial detention. Among these are certain defendants with prior convictions and defendants without prior convictions accused of offences punishable by more than five years ’ imprisonment (for the classification of offences under the Criminal Code, see paragraph 48 below). 43. Article 194 § 1 provides that, in examining an application for a preventive measure, the court must consider whether the following circumstances have been proven: ( i ) there is a reasonable suspicion against the suspect or accused; (ii) the prosecutor asserts in the application for a preventive measure, and there are sufficient grounds to believe, that there is at least one of the risks specified in Article 177; (iii) less severe preventive measures would be insufficient to prevent the relevant risks identified in the application. Article 194 § 2 provides that the court must refuse to apply a preventive measure if the prosecutor has failed to prove the existence of all the circumstances specified in Article 194 § 1. Article 194 § 3 provides that if the prosecutor has proven the existence of a reasonable suspicion, but not the existence of the risks and an inability to prevent them, the court may bind the suspect or the accused over to appear when summoned by the court or another authority. This binding over order is not considered a “preventive measure”. 44. Article 198 provides that the findings made in the order imposing a preventive measure concerning any circumstances regarding the substance of the suspicion or charges against the applicant are not binding ( не мають преюдиціального значення ) on the trial court, investigating authority and prosecutors in the course of the same and other criminal proceedings. 45. Article 208 authorises arrests without a court order in the following circumstances and subjects them to the following requirements: “1. [In the absence of a court order a] competent official shall be entitled to arrest a person suspected of having committed a crime for which imprisonment may be imposed only in the following cases: (1) if the person has been caught whilst committing a crime or attempting to commit one; or (2) if immediately ( безпосередньо ) after a criminal offence the statements of an eyewitness, including the victim, or [a combination] of clear signs on the body, clothes or at the scene of the event indicate that the person has just committed an offence... ... 4. The ...official who carried out the arrest shall immediately inform the arrested person, in a language which he or she understands, of the grounds for the arrest and of the crime he or she is suspected. The official shall also explain to the arrested person his or her rights: to be legally represented; to be provided with medical assistance; to make statements or to remain silent; to inform [third] parties ... of his or her arrest and whereabouts; to challenge the grounds for the arrest; as well as the other procedural rights set out in this Code. 5. A report shall be drawn up in respect of an individual ’ s arrest containing, [in particular,] the following information: the place, date and exact time (the hour and minute) of the arrest..; the grounds for the arrest; the results of the search of the person; requests, statements or complaints of the arrested person, if any; and a comprehensive list of his or her procedural rights and duties. The arrest report shall be signed by the official who drew it up, and by the arrested person. A copy shall immediately be served on the arrested person after his or her signature is obtained...” 46. Article 276 provides that when a person has been arrested, a formal notification of suspicion must be served on him or her. From that moment, the person acquires the procedural status of a suspect. On service of the formal notification, he or she must be informed of his or her procedural rights, including the right to remain silent and have legal assistance. Code of Criminal Procedure 1960 47. The relevant provisions of the Code, in effect until 18 November 2012, provided: Article 106. Arrest of a suspect by the body of inquiry “The body of inquiry shall only be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed on one of the following grounds: (1) if the person is discovered while or immediately after committing an offence; (2) if eyewitnesses, including victims, directly identify this person as the one who committed the offence; (3) if clear traces of the offence are found either on the suspect ’ s person, or on his clothing, or with him, or in his home. If there is other information giving rise to grounds for suspecting a person of a criminal offence, a body of inquiry may arrest that person if the latter attempts to flee, or does not have a permanent place of residence, or if the identity of that person has not been established. ...” Article 115. Arrest of a suspect by an investigator “An investigator may arrest ... a person suspected of having committed a crime in accordance with the procedure provided for in [Article] 106 ... of the Code. ...” Criminal Code 2001 48. Article 12 of the Code divides criminal offences into four categories, ranging from minor to particularly grave offences, based on the severity of the punishment imposed by the Code. A particularly grave offence is an offence punishable by more than ten years ’ imprisonment. 49. Article 258 § 2 provides for imprisonment of between seven and twelve years for a terrorist act committed as part of a conspiracy or for a terrorist act which has caused substantial pecuniary damage or other serious consequences. Legislative history of the Bail Exclusion Clause 50. The of 7 October 2014, which introduced the Bail Exclusion Clause into the Code of Criminal Procedure, originated in a draft law entitled “Draft law concerning introduction of amendments to the Criminal and Criminal Procedure Codes of Ukraine concerning certainty of punishment for certain offences against national and public security and corruption offences” (“ Про внесення змін до Кримінального та Кримінального процесуального кодексів України щодо невідворотності покарання за окремі злочини проти основ національної безпеки, громадської безпеки та корупційні злочини" ). The draft law primarily concerned introduction of a new system of in absentia proceedings for the national security and corruption-related offences. The explanatory note to the draft was mainly dedicated to that procedure. The only provision of the explanatory note concerning the Bail Exclusion Clause read: “introduction of pre-trial detention as the only preventive measure for separatist and terrorist offences will increase the speediness of pre-trial investigations concerning them” ( запровадження єдиного можливого запобіжного заходу у вигляді тримання під вартою за сепаратистські та терористичні злочини підвищить оперативність проведення їх досудового розслідування ). Constitutional Court Act 2017 51. The Act, which came into force on 3 August 2017, introduced, for the first time in Ukrainian law, the right for individuals to apply directly to the Constitutional Court for review of constitutionality of legislative provisions applied by courts in their cases. This change was based on the constitutional amendments enacted in 2016. Section 55 of the Act provides that a person considering that a provision of an Act of Parliament applied in his or her case can lodge a constitutional complaint with the Constitutional Court. The complaint can be lodged once ordinary courts have delivered a final decision in the case. 52. Section 91 of the Act provides that laws declared unconstitutional lose legal force from the day of delivery of the Constitutional Court ’ s decision declaring them unconstitutional, unless the Constitutional Court rules that they would lose legal force from a later date. The Constitutional Court ’ s decision concerning the Bail Exclusion Clause 53. On 25 June 2019 the Constitutional Court declared the Bail Exclusion Clause contrary to Article 29 of the Constitution guaranteeing the right to freedom and personal inviolability ( see paragraph 39 above). The case had been brought by four applicants and concerned the application of the Bail Exclusion Clause in their cases ( see paragraph 51 above concerning this procedure). However, the Constitutional Court ’ s decision did not describe the circumstances of those cases. The decision was based on the following reasons: ( i ) the Bail Exclusion Clause prevented the courts from issuing duly motivated decisions concerning pre-trial detention. Citing Korniychuk v. Ukraine (no. 10042/11, § 57, 30 January 2018), the court pointed out that according to the Court ’ s case-law, justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities and the judicial officer is required to give relevant and sufficient reasons for the detention; (ii) in accordance with the judgments in Khayredinov v. Ukraine (no. 38717/04, §§ 29 and 31, 14 October 2010) and Kharchenko v. Ukraine (no. 40107/02, § 80, 10 February 2011), the courts were under an obligation to consider other preventive measures as an alternative to detention. However, the Bail Exclusion Clause had taken away the courts ’ right to impose preventive measures that were less restrictive than detention; (iii) Article 29 of the Constitution required a reasoned court decision as grounds for detention. Such a decision had to be fair and could not be merely formalistic. This reduced the risk of arbitrariness which would exist if detention was based merely on the gravity of the offence without an examination of the specific circumstances of the case and reasons for detention; (iv) the Bail Exclusion Clause allowed for detention on the basis of formalistic court decisions, based purely on a formal classification of the offence, which was contrary to the principles of the rule of law and did not provide for a correct balance between the public interests justifying detention and individual liberty, a requirement inherent in Article 29 and other provisions of the Constitution. Domestic case-law concerning detention of defendants charged with terrorism and national security-related offences 54. On 13 October 2016 the Kharkiv Court of Appeal quashed a detention order in respect of a defendant (applicant in case no. 38718/16 Aleksandrovskaya v. Ukraine, communicated on 18 February 2017), charged with acting to undermine the territorial integrity of Ukraine, an offence covered by the Bail Exclusion Clause, and placed the defendant under house arrest. Relying essentially on Articles 2, 3 and 5 of the Convention, the court held that the defendant ’ s continued detention could adversely affect her medical situation, and that it had not been persuasively demonstrated that there was a risk that she might evade or hinder the ongoing investigation. 55. On 12 March 2018 the Kyiv Holosiyivsky District Court rejected a prosecutor ’ s application to extend detention of a defendant (applicant in case no. 71818/17 Avraimov v. Ukraine, communicated on 5 January 2018) charged with terrorism financing, an offence under Article 258-5 of the Criminal Code, covered by the Bail Exclusion Clause. The court released the defendant, which had been in detention since 24 April 2017, and bound him over to appear when summoned. The court found that the prosecution had failed to prove that the defendant represented any risks envisaged by Article 177 of the Code of Criminal Procedure ( see paragraph 41 above). The court had taken into account that the applicant had permanent accommodation and strong social ties, namely minor children and an elderly mother dependent on him and had no criminal record. The court cited Jablonski v. Poland (no. 33492/96, § 80, 21 December 2000 ) for the proposition that while the persistence of reasonable suspicion that the person arrested has committed an offence was a condition sine qua non for the lawfulness of the continued detention, after a certain lapse of time it no longer sufficed and judicial authorities had to give other grounds to extend deprivation of liberty. 56. In another case (domestic case no. 11-cc/796/4904/2017), on 27 September 2017 the Kyiv City Court of Appeal quashed a detention order and released a defendant, Mr O.L., charged with conspiracy to commit a coup d ’ état or insurrection, an offence under Article 109 of the Criminal Code, covered by the Bail Exclusion Clause. The Court of Appeal found that neither the reasonable suspicion in respect of the charges presented nor the risks the preventive measure was supposed to safeguard against have been proven by the prosecution. RELEVANT INTERNATIONAL MATERIALOffice of the United Nations High Commissioner for Human Rights (OHCHR) Office of the United Nations High Commissioner for Human Rights (OHCHR) Office of the United Nations High Commissioner for Human Rights (OHCHR) 57. The report of the OHCHR on the human rights situation in Ukraine from 16 May to 15 August 2016 reads: “81. OHCHR has documented a clear and consistent trend that human rights violations against persons charged with conflict-related or national security and ‘ terrorism ’ -related offenses often begin with arbitrary pre-trial detention. According to the Code of Criminal Procedure, as amended in October 2014, pre-trial detention is mandatory for all conflict-related or national security and ‘ terrorism ’ -related cases. According to the Minister of Justice, “custodial detention for separatist and terrorist crimes... increases the efficacy of a pre-trial investigation”. ... 83. Through trial monitoring, OHCHR has observed that neither the prosecution nor the judges address the grounds for continued detention at review hearings. Courts rarely examine alternatives to pre-trial detention, such as bail or other conditions to guarantee appearance for trial, which would render detention unnecessary in particular cases... 84. OHCHR finds that the relevant provisions of the Code of Criminal Procedure providing for mandatory pre-trial detention for accused charged with conflict-related or national security or terrorism offenses are contrary to international human rights standards and result in excessive and at times arbitrary detention. In May 2015, Ombudsperson filed an appeal with the Constitutional Court, challenging the constitutionality of the amendments citing the jurisprudence of the European Court of Human Rights. However, the Ombudsperson ’ s Office withdrew the appeal, for unexplained reasons.” International Advisory Panel 58. In its report on the investigations of the events of 2 May 2014, the International Advisory panel criticised the failure to impose a preventive measure on a senior police official suspected of implication in or failure to prevent the violence on that day, which resulted in his fleeing, allegedly to the self-proclaimed “Moldavian Republic of Transdniestria” ( paragraphs 86 and 230 of the report), which has an extensive border with the Odessa Region and is located about 72 kilometres by road from Odessa. Regarding its status, see Mozer v. the Republic of Moldova and Russia ([GC], no. 11138/10, §§ 99-112, 23 February 2016). The report also documented several other instances of defendants suspected and charged in connection with 2014 events in Odessa absconding (paragraphs 143, 144, 162, 163 and 277 of the report). | This case concerned the applicant’s arrest and detention in connection with various terrorism offences in Odessa in 2015. The applicant complained in particular of various rights infringements regarding his arrest and the extension of his remand. He also complained that the wording of his initial pre-trial detention order had breached his right to be presumed innocent. |
720 | Natural disasters | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants, Mr. Mehmet Özel, Mr Ali Kılıç, Mr İsmail Erdoğan, Mr Salim Çakır, Mrs Betül Akan, Mrs Menekşe Kılıç, Mrs Güher Erdoğan and Mrs Şehriban Yüce (Ergüden), were born in 1974, 1955, 1938, 1954, 1960, 1956, 1927 and 1966 respectively. A. Circumstances surrounding the deaths of the applicants ’ relatives 1. The apartment blocks built in Çınarcık 7. The Çınarcık Municipal Council, meeting in October 1994, adopted a decision increasing to six storeys the authorised height of the blocks covered by the building permits which had been issued to property developers for the construction of apartment blocks in Kocadere, on allotment 987, plot 1, and allotment 1257, plot 1. Pages 7 and 8 of the minutes of that meeting, recording the Municipal Council ’ s discussions, comprise the following exchange: “ H.D .: ... at the Municipal Council meeting of 17.10.1994 [the height of buildings in] the restricted zone was raised to six storeys in Kocadere, where, on the worksite belonging to K.P., [ the blocks were already ] six storeys high. [ During ] the on-site visit it was noted that there were two more six-storey buildings in Kocadere. I think the decision we took at the time was insufficient. I am therefore requesting a modification of the restricted zone for sites comprising six-storey blocks of flats... The Mayor : ... As I said at the 17.10.1994 meeting, our friend here is proposing legalising the six-storey buildings which have been completed, without bothering about the mistakes made in the past ... I repeat what I said at the June meeting: let us correct, rather than mull over, our past mistakes. I acknowledge that mistakes have been made. But from now onwards no one will be able to add an extra storey, we will not allow it. And it was not us that made the mistake. That was already the situation when we arrived [in the municipality]. N.P.: Mr Mayor, three persons have built six -storey blocks in Kocadere. What a cheek! And we subsidise these builders.. V.G. has built six -storey blocks on the site ... Who was asked for authorisation? ... I don ’ t have to clean up his mess! In June we decided that he should coat [ the buildings ] in concrete. He should just bury them... the municipality should revise the plans for the whole Kocadere region and authorise six storeys ... Y.B.: The new Municipal Council has been in place for seven months now. Have we visited the site where K.P. ’ s and V.G. ’ s buildings stand to record our findings and impose a fine? What exactly have we done so far? The Mayor : They are standing trial. As things stand [ their buildings ] are not lawful. They have put up five - to six-storey buildings, which is against the law ... We at no stage authorised their construction. There are two or three blocks. Either we authorise the six storeys or they will have to be demolished... If you ask me, I think that action should have been taken earlier on this situation ... we should now just leave this mess alone and issue a decision authorising the six storeys, thus correcting the mistake. After which we will not allow any more such buildings... Y.B.: Mr Mayor, you did not answer my questions. What has been done about these blocks over the last seven months? The Mayor : As I say, the builders are being prosecuted. Representatives of the housing department have inspected the site and the municipality has fined certain persons. Furthermore, we will not issue permits [ for ] these buildings before ... having imposed fines of two or three million Turkish lire ... ... M.P : Mr Mayor, the fine you mentioned is the second stage in proceedings. I would remind you that the first stage, [ relating to ] your responsibility as Mayor, is to implement section 32 of the Urban Planning Act (Law No. 3194). Pursuant to that legislative provision, apart from [ cases of ] constructions which are exempt from the permit requirement, where the authorities have determined that construction work has begun without a permit or the work is incompatible with the permit and its appendices, the Municipality or the Office of the Governor must immediately visit the site and work must stop forthwith. You have been in office for six months now: have you, or have you not, honoured that obligation? The Mayor : ... I repeat that I did not authorise the buildings in question... They had already been finished and roofed when I took up my duties. ... ” 8. On 8 and 12 June 1995 a Çınarcık resident complained to the Directorate General for Research and Implementation of the Ministry of Housing and Public Works about the alleged unlawfulness of the buildings constructed in the Çınarcık municipality by the V.G. company. 9. The Çınarcık Municipal Council held a meeting on 13 October 1995, during which the Municipal Head of Technical Services informed the councillors of the criteria for amending the municipal urban planning scheme. The minutes of the deliberations of the Municipal Council read as follows : “ The Municipal Head of Technical Services: Mr Mayor, I would like to remind you of the provisions of the urban planning scheme on the addition of extra storeys to buildings for which permits have been issued. According to these provisions, two conditions must be met for such work: the first relates to the width of the street, and the second concerns technical and social infrastructure. I would just inform the Council that neither of these conditions is fulfilled in the applications submitted for adding storeys to the buildings. ... Failure to comply with the conditions laid down in the regulations carries a criminal penalty ... The decision is yours ... ” Following these discussions, the Municipal Council accepted several applications for amendments to the municipal urban planning scheme. 10. On 4 October 1996 the Ministry of Housing and Public Works ( the “ Housing Ministry ” ) invited the Office of the Governor of Yalova to order the municipality in question to take the requisite legal action on the buildings constructed in breach of urban planning regulations, to monitor the action taken by that municipality and to keep the Çınarcık resident who had complained to the aforementioned directorate informed of the situation. 11. On 7 October 1996 the Municipal Council agreed that the number of storeys authorised for the buildings already constructed could be increased from five to six. 12. On 30 May 1997 the Housing Ministry invited the Governor of Yalova to adopt the urgent measures set out in sections 32 and 42 of the Urban Planning Act ( see Relevant Domestic Law, paragraph 134 below ) in respect of the buildings and the real estate developers at issue. 13. On 18 August 1997 the Office of the Governor of Yalova informed the Housing Ministry that despite the transmission of the latter ’ s orders to the municipality in question, the latter had failed to take any action. 14. By letter of 15 September 1997 the Housing Ministry invited the Office of the Governor of Yalova to issue the municipality with a final warning on the need to comply with its orders, failing which action would be taken against all persons failing to comply with their obligations under the Urban Planning Act. 15. On 15 October 1998 the Housing Ministry reminded the Office of the Governor of Yalova that section 32 of the Urban Planning Action prohibited amendments to urban planning schemes geared to legalising buildings which failed to comply with their building permits, and in fact required the authorities to correct any incompatibility with those permits. 2. The 17 August 1999 earthquake and the destruction of the buildings in Çınarcık 16. During the night of 17 August 1999 the Izmit region, located on the coast of the Marmara Sea, was hit by an earthquake of a magnitude of 7. 4 on the Richter scale. The earthquake was one of the deadliest to hit Turkey in recent years. According to official statistics, it killed 17,480 persons and injured 43, 953 [1]. 17. Seventeen buildings were destroyed in the municipality of Çınarcık, ten of them in the so-called Çamlık sitesi [2] and Kocadere sitesi [3] estates. On those estates 195 persons lost their lives and hundreds of others were injured as their dwellings collapsed. 18. Seher Özel, the mother of Mrs Akan and Mr Özel, Mehmet and Şadiye Yüce, the parents of Mrs Yüce (Ergüden), Hasan Kılıç, the son of Mr and Mrs Kılıç, Kazim Erdoğan, the son of Mr and Mrs Erdoğan, and Can Çakır, the son of Mr Çakır, were buried under the rubble of the blocks of flats in Çınarcık, where they had been when the earthquake struck. Mr Çakır was himself trapped beneath the rubble for about ten hours. Mrs Yüce (Ergüden) was injured, and personally rescued her daughter from the debris. Mrs Akan had also been trapped under the rubble for several hours. 19. According to a medical report of 18 August 1999 drawn up by a doctor working at the Bursa hospital, Mr Çakır had been placed under observation : he had suffered burns to various parts of his body and display whole- body trauma and respiratory problems. 20. On 24 August 1999 the Yalova public prosecutor visited Çınarcık together with technical experts and officers from the Directorate of Security. On the same day official inspection reports were drawn up on the Çamlık estate, covering allotment 1648/15-1, plot 7, sections C, D and E, allotment 1649/15-1, plot 3, and allotment 1927/15-1, plot 1, section E. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the material used for the construction had been sea-sand based and that as a result the cement had lost its binding capacity. 21. On 25 August 1999 the Yalova public prosecutor and a group of technical experts visited the Kocadere estate. On the same day they drew up official reports on allotment 1258/3-2, plot 1, allotment 1256/3 ‑ 2, plot 5, section D, and allotment 1257/3-2, plot 1. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted, in particular, that the concrete contained mussel shells, that the concrete displayed a very poor granulometry, that the concrete had not been cured, that the metal brackets in the buildings had not been properly fastened to the columns, and that because of the corrosion of the brackets the iron had worked loose from the concrete. 22. Moreover, on 13 September 1999 Mrs Akan had requested that the Yalova Regional Court determine, on the basis of the evidence gathered, the causes of the collapse of building D2 on allotment 1649-15/1, plot 3, in the Çamlık estate, under whose rubble her mother had died, and establish the relevant responsibilities. An expert opinion was commissioned to that end on the same day. 23. On 13 October 1999 the expert opinion commissioned set out the following findings: “ ... (d) Defects noted upon examination of the collapsed building, the rubble and the construction blueprint. 1. The height of the building was increased by 2. 80 m by raising the basement above ground level, thus transforming it into the ground floor. 2. The foundations of the building were raised to soft ground (topsoil ) level, which had low stability in terms of ground safety stress; the stability calculations ... were at no point revised. 3. The overall weight of the building was increased by the addition of an extra storey as compared with the number of storeys set out in the blueprint ... 4. Neither the basement included on the plan, whose existence would have greatly increased earthquake resistance, nor the reinforced concrete retaining walls, which, according to the plans, were to have surrounded the basement, were ever built. 5. The mussel shells found in the pieces of concrete in the rubble showed that the sea sand and gravel had been used without sifting or sorting, which had been a major factor in diminishing the concrete ’ s resistance. 6. It was noted that the reinforcing rods inside the concrete had rusted, suggesting that sea sand and gravel had been used unwashed and that the sea salt had corroded the metal. 7. The broken beams found in the rubble showed that the 20- cm distances between the brackets had not been respected, and in some places the interstices measured 30 cm ... 8. ... The stress testing carried out on the samples showed that their stress resistance was only half what it should have been. In conclusion : ... The building was constructed without any kind of technical control; another storey in addition to the number of storeys mentioned in the blueprint was added at the owner ’ s request in order to increase the number of housing and commercial units. Furthermore, the fact that the municipality failed to stop the building work raises issues. It is therefore necessary to ascertain whether a permit was issued for the building ’ s shallow foundations, which were, in fact, incompatible with the blueprint as from the first storey. If such a permit was issued, it is necessary to identify the persons working for the municipality who approved that permit and whether or not an occupancy permit was granted by the Çınarcık municipality. If so, it is necessary to establish the identities of the signatories of that occupancy permit. It is possible that other blocks have been built without inspection by the Çınarcık municipality. The photographs taken show buildings with seven storeys above ground level and others with two storeys. It is therefore necessary to establish the reasons for this architectural disparity and the regulations applied to the construction.” B. Criminal prosecution of the real estate developers 24. On 6 September 1999 the Yalova public prosecutor took statements by V.G., the real estate developer responsible for buildings which collapsed in Çınarcık. V.G. stated that he had been working in the real estate field for nine years and that he had constructed numerous buildings with his partnership, the company V.G., and with the company G. Arsa. He agreed to shoulder responsibility for the shortcomings in the buildings which he had erected himself, but not for the defects relating to other buildings in which individuals had died during the earthquake and which he had merely sold. He also submitted that the buildings located on allotment 1927/15-1, plot 1, section D, allotment 1649/15-1, section C, and allotment 1649/15-1, plot 3, section D, had been constructed by İ .K. and Z.C. He did not know who had constructed the buildings in the Çamlık estate which had collapsed. He added that he was neither a construction engineer nor an architect, and that was why he called on the services of persons with expert knowledge of these fields, who should, in his view, be held responsible. 25. V.G. was remanded in custody the same day. 26. On 14 September 1999 the Yalova public prosecutor charged five individuals : the partners in the company V.G. Arsa Ofisi, to wit V.G., C.G. and Z.C., and also the company ’ s scientific officers, to wit D.B. and İ. K. They were charged with having caused, through negligence and recklessness, the deaths of 166 persons, buried under the rubble of three buildings which they had constructed in breach of the relevant norms. It transpired from the indictment that several site sections – section E on allotment 1927, sections C and D on allotment 1649, and sections A, C, D and E on allotment 1648 – had been built in Çınarcık, on Çamlık square, and that three buildings, which had totally collapsed, had been erected in the Kocadere estate, on Hanburnu square, on allotments 1256 and 1258. It also transpired from the indictment that the experts who had taken samples from the collapsed buildings had, in particular, found as follows : in the buildings in question, the iron brackets had not been tightened at the interstice between the beams and the columns; mussel shells had been found in the concrete, resulting in low resistance owing to the use of sea sand and sea gravel; the distance between the columns and the beam brackets was 40 cm in places; and there was insufficient iron in some of the columns. 27. Criminal proceedings were commenced before the Yalova Criminal Court. 28. In September 1999 İ .K., D.B. and C.G. were remanded in custody in absentia by the Yalova Criminal Court. 29. On 30 September 1999 Z.C. was remanded in custody. 30. On 6 October 1999 the Yalova public prosecutor wrote to the General Directorate of Criminal Affairs of the Ministry of Justice to inform it of the following facts : a large number of articles had been published in the local and national press about V.G.; given the very large number of deaths involved, the trial would be attended by many journalists and also numerous relatives of the victims; there was likely to be a very tense atmosphere during the hearings; Yalova prison had been closed following the earthquake and the prisoners were therefore housed in the Bursa prison; the courtroom would be too small for the number of persons attending proceedings; there were credible risks of the accused being abducted or murdered; and any preventive measures which the security forces would be able to put in place would be insufficient, such that it would be better to transfer the case to a different court. 31. On 14 October 1999 the General Directorate of Criminal Affairs of the Ministry of Justice invited the State Prosecutor with the Court of Cassation to transfer the case from the Yalova Criminal Court to a different criminal court pursuant to Article 14 in fine of the Code of Criminal Procedure, in order to guarantee public security during the proceedings. 32. On 15 October 1999, before the start of proceedings before the Yalova Criminal Court, the Court of Cassation, to whom the matter had been referred, decided to transfer the case to the Konya Criminal Court [4] for reasons of security during the proceedings and of the accused ’ s safety. 33. On 19 October 1999, therefore, the Yalova Criminal Court transferred the case file to Konya Criminal Court. 34. On 20 October 1999 Mr Çakır applied to join the proceedings as a third party. On the same day Mrs Akan and Mr Özel also applied to join the proceedings as third parties, and declared that they reserved their rights as potential civil parties. 35. On 29 October 1999 Mr and Mrs Erdoğan and Mr and Mrs Kılıç lodged similar applications, and Mr Çakır reiterated his request. 36. On 20 November 1999 Mr Çakır forwarded a memorial requesting the criminal conviction of V.G. and his partners and stating that he reserved his rights vis-à-vis claiming compensation for the pecuniary and non ‑ pecuniary damage which he considered he had sustained. 37. On 29 November 1999, after the case had been transferred to the Konya Criminal Court, Mr Çakır once again applied to take part in proceedings as a third party, and declared that he reserved his rights as potential civil party to proceedings. Mrs Yüce (Ergüden) also applied to take part in the criminal proceedings as a third party. Similarly, counsel for Mrs Akan and Mr Özel submitted a third-party application on behalf of each of her clients. 38. On 29 December 1999 Mr and Mrs Erdoğan applied to participate in proceedings, reserving their rights as potential civil parties. They submitted that they had sustained serious mental suffering and also pecuniary damage as a result of the loss of their son. Mr and Mrs Kılıç also lodged a third ‑ party application. Mr Çakır was heard as a victim, and he gave evidence against the accused. Counsel for Mr Çakır requested the admission of his client ’ s application to take part in proceedings. At the conclusion of the hearing held on the same day, the Konya Criminal Court admitted that third ‑ party application. 39. On 28 January 2000 the Konya Criminal Court examined Mr and Mrs Erdoğan ’ s third -party application, and noted that their son ’ s name was not on the list of deceased victims set out in the indictment. The court therefore requested submissions from those two applicants, including fresh information on the deceased persons. In a memorial of the same day, Mr and Mrs Erdoğan requested that charges be pressed against the officials allegedly responsible for the impugned acts. 40. During the hearing of 21 February 2000 the Konya Criminal Court questioned the victims, the accused and their lawyers. Mr Çakır was examined in his capacity as a third party, and he requested the conviction of the accused and the commencement of proceedings the municipal officials in question. 41. According to the official record of the hearing held on 20 March 2000, Mrs Akan, Mrs Yüce (Ergüden) and Mr Çakır had been examined as third parties: Mrs Akan had demanded the conviction of the accused and also requested that charges be brought against the official in question in the framework of those proceedings; and counsel for Mr Çakır had also demanded the conviction of those officials. At the conclusion of the hearing, the State Prosecutor was asked for information on the measures adopted by his Office regarding the provincial officials, as well as those working in the Çınarcık municipality and the Housing Ministry. Furthermore, V.G. and Z.C. were released on parole. 42. On 21 April 2000 Mr Çakır once again requested the prosecution of the Mayor of Çınarcık and of the municipal Head of Technical Services and Architecture. Mr and Mrs Kılıç were granted third- party status in the proceedings. 43. On 30 June 2000 Mr Erdoğan was granted third-party status in the proceedings. Mr Çakır was heard as a third party, and he requested an additional indictment in order to involve in the proceedings the municipal officials who had authorised the construction of the buildings which had collapsed. Counsel for Mrs Akan reiterated a request previously submitted for provisional measures covering all of V.G. ’ s assets. 44. On 22 September 2000, during the proceedings, the Yalova public prosecutor once again charged the five accused persons with having caused the deaths of several other persons through negligence and recklessness. 45. On 12 October 2000 three experts from the Istanbul Technical University prepared a report on their inspection of ten buildings which had collapsed, seven of them in the Çamlık estate and three in the Kocadere estate. The conclusions of this expert report read as follows : “ Tectonics and seismic activity in the region between Çınarcık et Yalova ... This region is one of the most dangerous in seismic terms, which is why it has been marked out as a major hazard area on the map of Turkish seismic regions. Impact of the Izmit earthquake of 17 August 1999 on the region between Çınarcık and Yalova The 17 August 1999 earthquake, which was of a magnitude of 7. 4 on the Richter scale and whose epicentre was at Izmit, created a 120-km-long superficial fault from Gölcük to Akyazı ... The fault segment was interrupted at a distance of 50 km from Çınarcık ... The primary causes of the destruction were the nature of the soil and the quality of the construction methods. Conclusions The coastal zone between Çınarcık and Yalova is an extremely dangerous region in seismic terms ... The Çamlık estate, which collapsed, had been built on an active rockslide area and on particularly soft soil. In such a high seismic risk region there can be no valid reasons for issuing building permits for six - or seven-storey buildings on such soft soil. Moreover, the fact that six -storey building located 300 m away in the Çamlık estate which had been erected on soil with similar characteristics were not damaged and that people are still living in them support the hypothesis that the buildings in the Çamlık estate had building defects. ... Appraisal of the blueprints and the permits ... Assessment of the blueprints showed the absence of documents attesting that soil studies had been carried out on the land where the buildings were to be constructed... Expert reports included in the case file The expert appraisals commissioned by the Yalova public prosecutor ... highlighted the following shared defects : – Concrete resistance was unsatisfactory. The granulometric composition of the aggregates used for the concrete was inadequate and the concrete contained mussel shells. It was established that the cement dosage had been insufficient and that the sand had not been properly cleaned. – The metal brackets on the load-bearing parts had not been reinforced and the anti-rust fixtures [ paspayı ] were unsatisfactory ... Incipient corrosion on some of the reinforcing rods had weakened their adherence to the concrete. – ... – The softness of the soil was established. Establishing the responsibility of the accused persons and conclusions The owner and developer of all the impugned buildings [ which ] collapsed during the 17 August earthquake is the “ V.G. Arsa ofisi ” partnership. The founding partners of that company are İ.K., Z.C., C.G. ... Assessment of the evidence and documents contained in the case file shows that V.G. was the actual organiser [ of the project ] ... For this reason V.G. ’ s responsibility is estimated at 2/8. The responsibility of the public authorities which allowed the urban development of the Çamlık and Hanburnu neighbourhoods, authorised the multi-storey buildings there without commissioning the requisite prior geological studies, failed to provide for satisfactory supervision of the projects in the area, failed to request studies of the soil ..., failed to prevent the defective concrete -manufacturing procedures [ and ] failed to monitor the work of those responsible for the technical applications is estimated at 2/8. C.G. ’ s responsibility is set at 1. 5/16 and Z.C. ’ s at 1. 5/ 16... İ.K. ’ s responsibility is set at 3/16 on the grounds that he was a partner in the V.G. company, but also because he was responsible for the architectural and structural design of seven buildings and for the relevant technical applications... D.B. ’ s responsibility is set at 1/8 because he was responsible for the architectural and structural design of three buildings and for the relevant technical applications. ... ” 46. On 23 October 2000 the Yalova Criminal Court, to which the case had been referred following the indictment of 22 September 2000 ( see paragraph 44 above ), found that a similar action against the accused was pending and therefore requested the joinder of the two sets of proceedings. 47. On 22 December 2000 the Konya Criminal Court declined jurisdiction to adjudicate the impugned acts in view of the nature of the offence in question; the case was then referred to the Konya Assize Court. 48. Between 16 April 2001 and 21 October 2004 the Konya Court Assize held twenty-three hearings. At the hearing on 16 April 2001 the State Prosecutor pointed out that transferring the case to Konya was against the procedural regulations and in breach of the rights of the third parties. He stated that the security grounds advanced for that transfer had lapsed and that the proceedings should therefore have continued in Yalova, where the offence had been committed. The applicants also applied for the setting aside of the transfer order in question, submitting that the security grounds advanced no longer applied. On the same day the Konya Assize Court rejected the application, pointing out that pursuant to the case-law of the Court of Cassation the case had to remain before the court to which it had been transferred even if the grounds for the transfer no longer applied. Counsel for Mr Özel, Mrs Akan, Mr and Mrs Kılıç, and Mr and Mrs Erdoğan presented their case during the hearing. 49. On 26 April 2001 the Istanbul Criminal Court remanded C.G. in custody. 50. On 3 May 2001 the Konya Assize Court wrote to the Konya public prosecutor requesting the preparation of a further expert report, complementing that of 12 October 2000, on the ruins of the buildings in question in order to establish whether their mode of construction had been in conformity with the original blueprints and whether the materials used had complied with the usual standards. 51. On 8 June 2001 Mrs Akan gave evidence. She stated that she had lost her mother during the earthquake and had dug her own child out of the rubble. She also submitted that the accused had not been the only parties criminally responsible for the impugned acts, as various municipal officials and members of the Chamber of Architects responsible for the technical oversight of the constructions in question had also been guilty. Counsel for that applicant stated that he had heard, through unofficial channels, that the decision had been taken to broaden the investigation in order to establish the municipal officials ’ responsibility, and he requested information on whether a decision had been taken to prosecute the Mayor of Çınarcık and the official in question. During the 8 June 2001 hearing Mr Çakır also gave evidence as a third party, as did another person, who stated that the Council of State had adopted a decision on 4 October 2000 to the effect that the Mayor of Çınarcık could not be prosecuted ( see paragraph 89 below ). On the same day V.G. was once again remanded in custody. 52. On 11 June and 6 July 2001 the Konya Assize Court wrote to the Office of the Governor of Yalova, asking, in particular, whether any action had been taken against the Mayor of Çınarcık and the other officials liable to be held responsible for the consequences of the earthquake. 53. On 1 August 2001 V.G. and C.G. were released on parole. In a memorial of the same day, Mrs Akan and Mr Özel requested the indictment of the officials whose responsibility had been engaged for the impugned acts. Mr Çakır also submitted a memorial requesting the conviction of the accused and the prosecution, in the framework of the ongoing criminal proceedings, of the Mayor and the Head of Technical Service and Architecture of Çınarcık municipality. 54. At the hearing on 1 October 2001 Mr Çakır read out the minutes of meetings of the Çınarcık Municipal Council which, in his view, established that the buildings in the zone at issue had been constructed without prior authorisation. He once again submitted that the municipality and the officials had been responsible for what had happened. 55. On 11 April 2002 the Assize Court noted that the authorisation for a criminal investigation of the Mayor of Çınarcık and other officials (see paragraph 87 below) previously issued by the Interior Ministry had been set aside by the Council of State ( see paragraph 89 below ) and that the Inspectorate of Administration had adopted an opinion to the effect that there was no need to bring proceedings. 56. In a memorial of 16 July 2002 Mr Çakır requested the commencement of proceedings against the Mayor of Çınarcık and the Head of Technical Service and Architecture, suggesting that they should be tried in the framework of the criminal proceedings in hand on the ground that they had turned a blind eye to the construction of the impugned buildings. 57. On 24 July 2002 General Directorate of Local Administration of the Interior Ministry prepared a document for the Assize Court mentioning the following points : (a) the Interior Ministry ’ s 4 May 2000 decision to authorise a criminal investigation had been cancelled on 4 October 2000 by the Council of State, which meant that no action had been taken against the officials in question ( see paragraph 89 below ); (b) a report on an inquiry authorised by the Interior Ministry on 10 September 2001 had also concluded that there were no grounds for proceedings against the officials in question ( see paragraph 91 below ); and (c) another report on an inquiry authorised by the Interior Ministry on 25 January 2002 had concluded that there was no need to prosecute the officials in question ( see paragraph 93 below ). 58. At the hearing on 17 October 2002 the Assize Court noted that the document from the Directorate General of Local Administration of the Interior Ministry had been read and added to the case file. 59. In a claim submitted on 11 November 2003 Mr Çakır demanded a certain sum in respect of procedural expenses for the transfer of the case to Konya, and reserved his rights as regards that outlay. 60. On 18 November 2003 he repeated his request for the indictment of the officials whose responsibility had been engaged. 61. On 1 March 2004 Mrs Akan and Mr Özel submitted a memorial on the merits in which they relied on Article 6 of the Convention to complain of unfair proceedings and an infringement of the “ natural judge ” principle owing to the transfer of the case to Konya and a breach of the right of prosecution. They considered that their inability to obtain leave of prosecution under the Prosecution of Civil Servants and other Public Officials Act (“Law No. 4483”) with regard to the municipal officials in question was contrary to the principle of equality before the law, as well as Articles 6 and 13 of the Convention. 62. On 4 May 2004 the Konya Assize Court ordered the separation of the case in hand from that concerning D.B. and İ.K. on the ground that the latter two accused persons had been untraceable for almost three years, thus delaying the proceedings. 63. On the same day a joint memorial was lodged with the registry of the Konya Assize Court by Mr and Mrs Kılıç and Mr and Mrs Erdoğan, declaring that they reserved their rights to claim civil damages in the criminal proceedings. Mrs Yüce (Ergüden) lodged a third-party memorial stating that owing to the deficiencies and delays in the civil and criminal proceedings the shares held in the accused ’ s company had been sold off, which she considered as jeopardising the chances of success for any future action for damages. She also pointed out that the Mayor of Çınarcık had been given a thirty-five-month prison sentence for the architectural practices implemented in the Çamlık estate ( see paragraph 85 below ), and that he had been removed from office. 64. On 24 June 2004 İ.K. was remanded in custody. 65. On 5 July 2004 a fresh expert report was prepared at the Assize Court ’ s request. According to the report, V.G. had been issued with six different building permits, twenty-two blocks had been built in Çınarcık for which no occupancy permit was to be found in the assessment file, and 195 persons had died buried in the rubble of those buildings, 152 of them in the Çamlık estate, 12 in the Kocadere estate and 31 in the V.G. estate. It also transpired from that report that İ .K. had been responsible for the architectural project regarding the buildings in the Çamlık estate, on allotment 1927/15-1, plot 1, allotment 1649/15-1, plot 3 and allotment 1648/15-1, plot 7, and that D.B. had been in charge of the architectural project regarding the buildings in the Kocadere estate, on allotment 1258/3 ‑ 2, plot 1, allotment 1257/3-2, plot 1, and allotment 1256/3 ‑ 2, plot 5. The report also specified that the V.G. company, in which İ .K. and Z.C. had been partners, had been responsible for the construction of all those buildings. 66. On 14 October 2004 the State Prosecutor presented the prosecution case on the merits. He submitted that 195 persons had died in the estates built by V.G.: 115 persons had been killed on allotment 1925, plot 1, allotment 1648, plot 7, and allotment 1649, plot 3, and 80 other persons in other buildings. Those deaths had been caused not by the earthquake alone but also by the actions of the accused, who had used deficient materials with full knowledge of the risks involved. He demanded the conviction of the accused pursuant to Articles 383/2 and 40 of the Penal Code, insisting that the sentence should be delivered six times, one for each of the building permits issued. 67. On 21 October 2004 the Assize Court found the accused V.G., C.G. and Z.C. guilty of endangering the lives of others through negligence and recklessness and, pursuant to Article 383/2 of the Penal Code, sentenced each of them to twenty years ’ imprisonment without parole and four years and twelve months ’ [5] imprisonment, and to a fine of 360, 000, 000 Turkish lire [6] (TRL). The Assize Court gave the following reasons : “ ... The investigations conducted on the sites and the expert reports drawn up both during the preliminary investigation and during the criminal proceedings showed that the buildings which collapsed as a result of negligent, virtually intentional, acts had been built in breach of many current legal obligations. Even though the area in question had been classified as a major seismic hazard zone, no soil studies had been carried out on the worksites. The concrete, metal and other materials used lacked the necessary resistance. A large number of obligations set out in the blueprint were breached. The buildings thus constructed collapsed under the impact of the earthquake, and those holding responsibility for the collapse of the buildings had made no attempt to avert danger and [ offset ] the unlawful acts committed, such that a direct causal link was established between the negligent acts and the consequences of the collapse of the buildings. ... The provisions relating to the concurrence of offences are applicable to this case ... The present proceedings concern six different building permits ... Consequently, the accused were held responsible for six different events. Having regard to the lists drawn up by the Governor of Çınarcık district and by the Kocadere municipality ... 11 persons lost their lives on plot no. 1, allotment 1927 (1 st section ), 28 on plot no. 3, allotment 1649 (2 nd section ), 76 on plot no. 7, allotment 1648 (3 rd section ) and 2 on plot no. 5, allotment 1256 ( blocks A and B). It has not been established with certainty whether there were any deaths on the other plots. Where it was established that there were deaths, it was also established that buildings collapsed. Therefore, it must be acknowledged that in those buildings people ’ s lives had been jeopardised. Consequently ... the sentencing procedure must involve applying to each of the accused the final sentence of Article 383/2 of the Penal Code, multiplied by four, as regards the deaths which occurred in four zones covered by a permit. As regards the two zones covered by a permit where no loss of life could be established, the first section of Article 382/2 of the Penal Code, multiplied by two, must be applied. All the buildings were constructed by the real estate developer, that is to say the ‘ V.G. Arsa Ofisi ’ company ... At the material time the two accused persons V.G. and C.G. had been partners in that company. The accused person Z.C. had also been a partner in the company in respect of the buildings covered by permits. Z.C. had also been the owner of five buildings covered by permits. Insofar as Z.C. was involved in the construction of the buildings, he must be held responsible for all the relevant actions ... Even though permits had indeed been issued for all the building lots, none of them was covered by an occupancy permit, that is to say a permit for utilisation. In this context, since at the time of the offence the company and its partners were still under the obligation to correct the shameful [defects] in the buildings, [ they ] are also criminally liable for the collapse of the latter owing to these disgraceful [ defects ] throughout the whole period ... As already stated above, the consequences of the impugned acts amounted to a disaster. Solely because of those acts, 195 persons lost their lives and pecuniary damage was sustained to an extent which is difficult to quantify. The accused bear enormous responsibility for those consequences. As highlighted by the expert reports, using such construction methods in a 100% earthquake risk zone really was a recipe for disaster ... ” 68. On 4 November 2004 İ .K. was also found guilty of homicide and bodily harm through recklessness. He was sentenced to twenty years ’ imprisonment without parole and four years and twelve months ’ imprisonment, and to a fine of TRL 360,000,000. 69. The accused appealed on points on law. 70. By judgment of 27 June 2005 delivered on 6 July 2005 the Court of Cassation set aside the convictions of V.G., C.G. and Z.C. on the following grounds: the fact that a judge had failed to sign the minutes of the 20 March 2000 hearing; conviction for the collapse of a building on allotment 1257, plot 1, which was not mentioned in the indictment; the failure to read out the 22 September 2000 indictment before taking statements from the accused; and the entry into force of the new Penal Code. 71. By judgment of 18 July 2005 delivered on 20 July 2005 the Court of Cassation also set aside İ .K. ’ s conviction on the following grounds : the conviction for the collapse of a building on allotment 1257, plot no. 1 was not mentioned in the indictment; one judge had failed to sign the minutes of the 20 March 2000 hearing; the criminal prosecution of İ .K. should have been joined to that of the other accused persons; and the new Penal Code had come into force. 72. Between 18 June 2005 and 11 April 2006 the Konya Assize Court, to which the case had been referred back by the Court of Cassation after the setting aside of the 21 October 2004 judgment, held eleven hearings. The preparatory report for the 18 June 2005 hearing included the applicants ’ names in the list of third parties to the proceedings. 73. On 17 August 2005 the Konya Assize Court ordered the joinder of the criminal proceedings against İ .K. with those pending against V.G., C.G. and Z.C. 74. On 31 January 2006 the Assize Court decided to separate the proceedings against the accused Z.C. and C.G. untile they were arrested. 75. On 11 April 2006 the Konya Assize Court sentenced V.G. and İ .K. to eighteen years and nine months ’ imprisonment and to a fine of TRY 250 [7]. Mr Çakır, Mrs Yüce (Ergüden), Mrs Akan, Mr Özel and Mr and Mrs Erdoğan were mentioned as third parties to the proceedings. Mr and Mrs Kılıç were mentioned as complainants. In its statement of reasons the Assize Court pointed out that the buildings in Çınarcık had been destroyed by the earthquake, but that it had transpired from the inspections carried out both during the preliminary investigation and during the proceedings that the buildings which had collapsed had been constructed in breach of numerous legal obligations. The Assize Court further emphasised the following : even though the stricken zone was classified as a level- one earthquake hazard area, the buildings had been constructed without any prior soil testing; the construction material used had been low - quality and the concrete had not been solid; the buildings erected had been destroyed under the impact of the earthquake; the accused had acted negligently, which had contributed to the destructive events; and there was a direct causal link between the destruction and the loss of life. The Assize Court further held that the provisions relating to the concurrence of offences were applicable to the case, that each building project implemented in accordance with a building permit had constituted an offence and that the instant case concerned five permits, namely allotment 1927, plot 1, allotment 1649, plot 3, and allotment 1648, plot 7 in Çamlık, and allotment 1258, plot 1 and allotment 1256, plot 5 in Kocadere. It was also noted that no proceedings concerning allotment 1257, plot 1 had been brought before the Assize Court. As regards the lists drawn up by the Governor of Çınarcık District and Kocadere Municipality, the Assize Court explained that eleven persons had lost their lives on allotment 1927, plot 1 (1 st section ), twenty-eight on allotment 1649, plot 3 (2 nd section ), seventy-six on allotment 1648, plot 7 (3 rd section ) and two on allotment 1256, plot 5 (blocks A and B). It pointed out that it had been impossible to establish whether any deaths had occurred on the other plots, but that it had been established that the dwellings on those plots had been inhabited, thus placing the inhabitants in mortal danger. The Assize Court also noted the following : the V.G. Arsa Ofisi company had been responsible for all the buildings constructed on those plots; at the material time V.G. and C.G. had been partners in that company and Z.C. had been involved in obtaining the permits for the buildings; even though permits had been issued for the buildings in question, none of them had been covered by an occupancy permit, such that the building company and the various partners held criminal responsibility for the events. 76. The accused appealed on points of law. 77. On 16 April 2006 the Court of Cassation adopted a decision to transmit the case to the public prosecutor with the Court of Cassation so that he could submit his opinion on that appeal. The cover page of the decision bore the inscription “Detainees – statute limitation period expiring soon”. 78. In a memorial of 5 February 2007 Mr Çakır asked the Court of Cassation to confirm the first-instance conviction, under urgent procedure, on the ground that the offence would shortly be statute-barred. 79. On 6 February 2007 the Court of Cassation confirmed V.G. ’ s conviction. It also partly upheld İ .K. ’ s conviction, invalidating it as regards İ .K. ’ s responsibility for the destruction that had taken place on allotment 1258, plot no. 1, on the ground that it was unlawful to convict that accused person without having regard to the lack of evidence regarding his status as a technical officer or as a partner in the company responsible for erecting the building in question. 80. On 20 February 2007 the Konya Assize Court adopted two decisions discontinuing the criminal proceedings against D.B. and C.G. on the grounds that they had become statute-barred. The proceedings against Z.C. were also terminated, on an unknown date, on the same grounds. 81. On 15 March 2007 the Konya Assize Court, to which the case had been referred, discontinued the criminal proceedings against İ .K. as regards his responsibility for the destruction that had taken place on allotment 1258, plot 1, on the grounds that they had become statute-barred. The applicants ’ names were included as third parties in the decision. 82. On 8 June 2007 the public prosecutor with the Court of Cassation, examining an appeal lodged by V.G. and İ .K. against the judgment of 6 February 2007, held that that appeal had been lodged unnecessarily. C. Criminal proceedings brought against the Mayor and the Head of Technical Services of the Çınarcık Municipality before the earthquake 83. Previously, on 7 May 1997, the Governor of Yalova had stated that the Mayor and the Head of Technical Services of Çınarcık should be prosecuted under Articles 230 and 240 of the Penal Code for failing in their duties and abusing their authority. The Governor accused them, in particular, of having, between 1995 and 1996, altered the urban planning schemes and turned a blind eye to the erection of illegal buildings, and of having failed to demolish the latter and to impose the relevant fines. 84. On 18 March 1999 the Council of State, having been applied to by the accused persons, transmitted the case file to the Yalova Criminal Court with a view to prosecuting the offence under Article 240 of the Penal Code. 85. On 28 February 2001, in the framework of the proceedings thus instigated, the Yalova Criminal Court found the accused guilty as charged. It was satisfied that the Mayor had authorised, under a decision taken by the Municipal Council on 13 October 1995, alterations to the urban planning schemes in a manner contrary to normal procedure – which action falls foul of Article 230 of the Penal Code – but that in view of the nature of the offence and the penalty incurred the imposition of a final penalty should be suspended, pursuant to section 1 [4] Law No. 4616 concerning release on parole and stay of proceedings and penalties for offences committed before 24 April 1999. The Criminal Court considered the 1997 adoption by the Municipal Council of a decision setting aside the aforementioned 13 October 1995 decision before it could be enforced as a mitigating circumstance : it changed the penalties imposed on the Mayor to six months ’ imprisonment, under Article 240/2 of the Penal Code, and a TRL 300, 000 fine. In view of the Mayor ’ s behaviour during the proceedings, those penalties were reduced to five months ’ imprisonment and a fine of TRL 250, 000. The Mayor was also found guilty of having abused his authority by once again altering the planning schemes in breach of procedure, under a Municipal Council decision of 14 February 1996, and he was therefore sentenced to one year ’ s imprisonment pursuant to Article 240 of the Penal Code and fined TRL 300,000, which penalties were then reduced to ten months ’ imprisonment and a fine of TRL 250,000. He was also found guilty of having failed to enforce the fines imposed pursuant to Article 42 of Law No. 3194, as ordered by the Municipal Council on 22 May 1996. Furthermore, he was sentenced to one year ’ s imprisonment and fined TRL 42 0, 000 for having failed to ensure the destruction of the unlawful worksites, which penalties were then reduced to ten months ’ imprisonment and a fine of TRL 35 0, 000. The court also found the two accused guilty of having failed to halt the works performed in a manner inconsistent with the corresponding building permits, of having failed to take action to ensure the demolition of the unlawfully erected constructions and of having abused their authority. Each of the accused was consequently sentenced to one year ’ s imprisonment and fined TRL 300, 000, subsequently reduced to ten months ’ imprisonment and a fine of TRL 250, 000. In all, the Mayor of Çınarcık was sentenced to thirty- given months ’ imprisonment and fined TRL 1, 100, 000, and the Head of Technical Services was sentenced to ten months ’ imprisonment and fined TRL 250, 000, which penalties were suspended. 86. On 5 May 2003 the Court of Cassation upheld that judgment. D. Administrative proceedings 1. Action to ensure the prosecution of the officials 87. On 4 May 2000 the Interior Ministry adopted a decision authorising the instigation of a criminal investigation under Article 230 of the Penal Code against the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and an official working in Technical Services, the last two having admitted that they had at no stage inspected the worksite after the laying of the foundations of the buildings in Çamlık, allotment 1927/15 ‑ 1, plot 1, block E, allotment 1649/15-1, plot 3, blocks C and D, and allotment 1648/15-1, plot 7, blocks A, C, D and E, and the buildings in Kocadere, allotment 1256/3-2, plot 5, block D, allotment 1257/3-2, plot 1, block D and allotment 1258/3-2, plot 1, block D. 88. On 14 July 2000 Mrs Akan and Mr Özel applied to the Interior Ministry ’ s Inspection Committee for identification of the officials who had failed in their duties of inspection and supervision of the impugned buildings. Relying on the conclusions of the expert report of 13 October 1999 (see paragraph 23 above), they also requested a prosecution order against them. They submitted that their aim was to shed light on the whole chain of responsibilities, emphasising that the Mayor of Çınarcık, the Municipal Council and the technical and administrative staff responsible for inspection and supervision should also be prosecuted and placed on trial pursuant to section 102 of the Local Authorities Act ( Law No. 1580 ). The two applicants considered that the municipality had turned a blind eye to the construction of buildings that fell short of the legal requirements. They also reiterated that the construction area in question had been classified as a “ major earthquake hazard zone ”, and complained that the municipality had authorised excessively high buildings on unstable ground. Finally, it was necessary to establish the responsibility of the Büyükşehir municipality on the ground that the area at issue had been part of that municipality at the time of the construction of the buildings and the submission of the architectural plans. 89. On 4 October 2000 the Second Division of the Council of State, examining an appeal lodged by the individuals concerned by the authorisation of criminal investigation issued by the Interior Ministry ( see paragraph 87 above ) and acting under Section 9 of Law No. 4483 ( see Relevant domestic law, paragraph 133 below ), lifted the criminal investigation authorisation issued by the Interior Ministry. The Council of State held that responsibility should be attributed to the specialists who had planned the building project, emphasising that many of the buildings destroyed on 17 August 1999 had not been covered by occupancy permits. 90. On 6 July 2001 the two aforementioned applicants applied to the Directorate General of Local Authorities of the Interior Ministry. On the basis of new evidence they reiterated their application for the prosecution of the officials in question. They submitted that, in the light of the new evidence in question, those officials could not be charged with mere negligence, and that their actions had amounted to abuse of authority. 91. On 10 September 2001 a review report was drawn up as authorised by the Interior Ministry on 15 August 2001, geared to ascertaining whether the failure to react to and verify the addition of extra storeys to several buildings – those located in Çamlık, allotment 1927/15 ‑ 1, plot 1, block E; allotment 1649/15-1, plot 3, blocks C and D; and allotment 1648/15 ‑ 1, plot 7, blocks A, C, D and E; and in Kocadere, allotment 1257/3 ‑ 2, plot 1, block D – which had been effected in breach of the corresponding building permits, had amounted to a breach of professional duties by the former and current Mayors of Çınarcık, the former and current municipal Heads of Applied Science, as well as the architect and a member of the technical services staff. The report concluded that there had been no need to prosecute the actions in question as they had been in conformity with usual procedure; consequently, no proceedings were brought against the aforementioned persons. 92. On 5 November 2001 Mrs Akan and Mr Özel once again applied to the Directorate of Local Authorities of the Interior Ministry for information on the action taken on their various complaints, pointing out that their requests for the prosecution of the officials had been unsuccessful and that no preliminary inquiry had yet been launched into the facts of which they had complained. 93. On 25 January 2002 a further review report was prepared as authorised by the Interior Ministry on 2 January 2002. That report found that there had been no need to take action against the officials in question for having authorised six -storey buildings. 94. On 4 February 2002 the above-mentioned Directorate replied to the application of 5 November 2001 ( see paragraph 92 above ). It first of all reiterated that the decision taken by the Interior Ministry authorising an investigation had been cancelled by decision of the Council of State of 4 October 2000. It went on to explain that in reply, in particular, to the application of 6 July 2001 ( see paragraph 90 above ), a preliminary examination had been conducted as authorised by the Interior Ministry on 15 August 2001, concluding that the issue at stake had already been decided, that the Council of State had cancelled the authorisation of investigation and that there was therefore no need for action against the individuals in question. Finally, it pointed out that, having regard to the applicants ’ new allegations, a further authorisation of examination had been adopted on 2 January 2002 ( see paragraph 93 above ). 95. On 20 August 2002, relying on section 53 of the Administrative Procedure Act (Law No. 2577 ) and pointing to the existence of new evidence, the applicants applied to the Council of State to set aside the decision of 4 October 2000 ( see paragraph 89 above ) and to reopen proceedings. 96. On 18 September 2002 the Second Division of the Council of State dismissed that application, without consideration of the merits, on the grounds that no appeal lay from the contested decision, referring in that regard to sections 3 ( h ) and 9 of Law No. 4483 ( see Relevant domestic law, paragraph 133 below ). 97. On 20 November 2002, the applicants once again applied to the Council of State, submitting that they had not appealed against the decision of 4 October 2000 cancelling the authorisation of a criminal investigation but had applied for the reopening of proceedings pursuant to the Administrative Procedure Act (Law No. 2577 ), which was a different remedy. They reiterated their request to that effect. 98. On 14 January 2003 the Council of State dismissed that request, having noted that the proceedings in question had been conducted pursuant to Law No. 4483, which did not provide for reopening proceedings. 99. On 8 April 2004, examining an appeal lodged by Mrs Akan and Mr Özel against the 25 January 2002 report (see paragraph 93 above), the Second Division of the Council of State dismissed that appeal, without considering the merits, on the grounds that it concerned a decision from which no appeal lay. 2. Application to the Provincial Human Rights Committee 100. On 25 February 2004 Mrs Akan and Mr Özel applied to the Yalova Provincial Human Rights Committee ( “ the Yalova Committee ” ). They submitted that the transfer of the criminal proceedings from the scene of the earthquake (Yalova) to Konya was in breach of the “ natural judge ” principle and infringed the victims ’ right of appeal. They also complained of shortcomings in the assessment of the applications for the prosecution of the officials involved in the case. 101. On 6 April 2004 the Yalova Committee noted that the Commission responsible for the investigation and appraisal of human rights violations had prepared a rapport on the impugned facts concluding that there had been compelling reasons for changing the trial venue, as provided for in Article 14 of the Code of Criminal Procedure, and had not breached any human rights. Similarly, according to the findings of the report, the cancellation by the Council of State of the authorisation of investigation against the official whose responsibility had been engaged and the refusal to reopen the proceedings had not been contrary to human rights. Furthermore, the Yalova Committee pointed out that according to the same report, the complainants could have lodged an application with the European Court of Human Rights. 102. The Yalova Committee also noted that a member of the Commission responsible for the investigation and appraisal of human rights violations had set out the following additional observations : “ 1. The increase in the number of storeys without the authorisation of the Municipal Council and the amendments to the architectural plans, as well as the failure to comply with the architectural plans concerning the ‘ high- risk ’ nature of the zone, amount to an infringement of the right to life; 2. The transfer, on security grounds, of the case to Konya rather than to a province closer to Yalova violated the victims ’ right to a judge and their right of appeal. The Ministry of Justice has to provide financial assistance to the complainants so that they can follow the proceedings ... 3. The following constitute human rights violations: the inability, following the cancellation by the Council of State of the authorisation of investigation under Law No. 4483, to secure, [ on the basis of ] the new evidence submitted, the re-examination of the impugned facts [ and ] and the reopening of the proceedings ... [ The same applies to ] the lack of a right of appeal for the complainants following the cancellation of the authorisation of prosecution of the officials .” 103. On 29 April 2004 the Office of the Governor of Yalova wrote to counsel for the applicants to inform her of that decision, transmitting a copy thereof. 3. Compensation proceedings a) Actions for damages 104. On an unknown date Mrs Akan and Mr Özel had lodged with the Bursa Administrative Court an action for damages against the Interior Ministry, the Mayor of Çınarcık, the Housing Ministry and the Mayor of Büyükşehir (Istanbul), seeking compensation for the pecuniary and non ‑ pecuniary damage which they had sustained. They had submitted that the administrative authorities charged in the proceedings had authorised building in major earthquake hazard zones, failing to use appropriate construction techniques, and that they had issued building and occupancy permits without adequate controls, thus committing a breach of their administrative duty. 105. On 30 October 2000 the Bursa Administrative Court dismissed that action as having been brought out of time, stating that the applicants should have brought their action within sixty days from the preparation of the expert report of 13 October 1999 ( see paragraph 23 above ), when they had been apprised of the alleged defects. 106. On 4 March 2003 the Bursa Regional Administrative Court dismissed an appeal against the latter decision and upheld the first-instance decision. b) Claim for the reimbursement of costs and expenses 107. On 2 August 2004 Mr Çakır submitted a claim to the Ministry of Justice for the reimbursement and defrayal of his travel expenses to and from Konya in order to follow and take part in the criminal proceedings. 108. On 31 August 2004 the Ministry of Justice rejected that claim. 109. On 16 May 2006 the Ankara Administrative Court, to which the applicant had appealed against that decision, held that the decision to transfer the Yalova case to Konya had been a judicial rather than an administrative decision and that it accordingly could not engage the responsibility of the administrative authorities. E. Civil proceedings against the property developers 1. The civil proceedings brought by Mrs Akan and Mr Özel 110. On 27 September 1999 Mrs Akan and Mr Özel had lodged with the Yalova Regional Court (“ YRC ” ) an action for damages against the V.G. partnership, V.G. himself, İ .K., Z.C. and the Çınarcık municipality. 111. During the hearings held between 29 September 2004 and 17 September 2007, the YRC ordered the adjournment of the case until the conclusion of the criminal proceedings which were pending before the Konya Assize Court at the time. 112. On 17 September 2007 the YRC observed that the Konya Assize Court had convicted V.G. and İ.K. of five offences, one of which related to the collapse of three blocks on allotment 1256, and that that conviction had become final, having been adopted in the light of an expert report prepared by Istanbul Technical University on 12 October 2000 establishing the accused ’ s responsibility. That expert report had been added to the case file, and the YRC commissioned a further expert report in order to establish the pecuniary damage sustained by the complainants as a result of the loss of their apartment. 113. On 19 November 2007 an expert estimated the pecuniary damage sustained at TRY 5, 015. 114. At the hearing on 14 January 2008 the complainants contested the conclusions of that expert opinion. 115. On 2 December 2008 the YRC, sitting as a consumer court, rejected the claims for compensation brought against V.G. and the Mayor of Çınarcık respectively on grounds of absence of evidence and lack of jurisdiction. It further held that the complainants ’ claim for the moveable property lost should be considered as having been abandoned during the course of proceedings. Finally, the YRC partly acceded to the request for compensation by ordering the V.G. and Z.C. partnership to pay the applicants TRY 2, 091. 43 jointly in respect of pecuniary damage and TRY 2, 000 each in respect of non-pecuniary damage. 116. On 13 March 2009 Mrs Akan and Mr Özel appealed against that judgment on points of law. In their memorial before the Court of Cassation they submitted that V.G. ’ s responsibility had been established by the Konya Assize Court and that, while civil courts were not bound by the conclusions of criminal courts, that did not apply to cases where the facts had established beyond doubt. They complained that the YRC had decided the case as a consumer court, even though it had involved a purely civil action. Finally, they submitted that the amounts awarded in compensation had been unsatisfactory, so that the YRC ’ s decision had been incompatible with Articles 2 and 13 of the Convention and had, moreover, infringed their property rights. 117. On 28 February 2010 the Court of Cassation set aside the YRC ’ s judgment. 118. On 28 June 2010 an expert report was drawn up, estimating the pecuniary damage sustained by the applicants, on the basis of the value of the apartment that had been destroyed during the earthquake, at TRY 2.750. 119. On 23 November 2010, the YRC, to which the case had been referred back by the Court of Cassation, again rejected the compensation claim against V.G. for lack of evidence, holding that the latter had been involved in neither the construction nor the sale of the building in question. The YRC also dismissed the compensation claim against the municipality, declining jurisdiction in favour of the administrative courts. It noted that the claim against İ.K. had been abandoned. Drawing on Article 409 of the Code of Civil Procedure, the YRC considered that the claim relating to moveable property should be deemed not to have been lodged. Lastly, it ordered the V.G. and Z.C. partnership to pay, jointly and severally, TRY 3, 600 in respect of the pecuniary damage sustained, and a sum of TRY 2, 000 to each claimant in respect of non- pecuniary damage. 120. On 15 November 2011 the Court of Cassation upheld that judgment. 2. Civil proceedings brought by Mr Çakır 121. On 11 November 1999 Mr Çakır and his wife had brought before the YRC an action for damages against the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm, the V.G. Arsa Ofisi partnership, V.G. and İ.K. They claimed TRL 15,000 each in respect of pecuniary damage, TRL 500,000 in respect of non-pecuniary damage and a further sum to be calculated in compensation for loss of support. 122. On 29 December 2008 the YRC stated that it was satisfied that the property developer responsible for the building in the ruins of which the applicant ’ s son had died was the V.G. Arsa Ofisi partnership and that the architectural blueprint had been prepared by İ.K., who had also acted as scientific officer for the project. Furthermore, in the light of the expert report prepared on 12 October 2000 at the request of the Konya Assize Court, the public authorities which had issued the permit had been responsible in a ratio of 2/8 and the persons in charge of construction had been responsible in a ratio of 6/8. The YRC considered that the V.G. Arsa Ofisi partnership and İ.K. had therefore been responsible in a ratio of 6/8. The YRC dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It allowed in part the applicant ’ s and his wife ’ s compensation claims. The V.G. Arsa Ofisi partnership was accordingly ordered to pay the applicant TRY 1, 170 in respect of the moveable property which they had lost, TRY 5, 317. 40 in respect of loss of financial support and TRY 4, 500 in respect of non ‑ pecuniary damage. 123. On 18 November 2009 the Court of Cassation set aside that judgment on the ground that the court which had jurisdiction to hear and determine the case had been the Consumer Court. 124. By judgment of 1 April 2010, the YRC, to which the case had been referred back, sitting as a consumer court, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the grounds that they could not have been involved in the proceedings. It also dismissed the claim against İ.K. on the ground that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1, 014 in respect of the moveable property which he had lost, TRY 4, 607. 85 in respect of loss of financial support and TRY 4, 500 in respect of non- pecuniary damage. 125. On 9 March 2011 the Court of Cassation set aside that judgment. 126. On 13 November 2011 the Court of Cassation dismissed an application for rectification of its judgment. 127. On 29 December 2011 the YRC, to which the case had been referred back, dismissed the claim against V.G. and the limited liability company V.G. Arsa Ofisi Villa Inş. Taah. Turizm on the ground that they could not have been involved in the proceedings. It likewise dismissed the claim against İ.K. owing to the fact that when he had died, after the action had been brought, his heirs had not accepted the succession. Nevertheless, the YRC allowed in part the claim against the V.G. Arsa Ofisi partnership. In that connection it awarded Mr Çakır TRY 1,560 in respect of the moveable property which he had lost, TRY 7,089 in respect of loss of financial support and TRY 4,500 in respect of non-pecuniary damage. 3. Civil proceedings brought by Mrs Yüce (Ergüden) 128. On 16 February 2000 Mrs Yüce (Ergüden) and three members of her family had brought compensation proceedings before the YRC in respect of the damage suffered owing to the deaths of their parents, claiming TRL 1 ,000,000,000 in respect of non-pecuniary damage and TRL 9 ,000,000,000 in respect of pecuniary damage. The action for damages was directed against the V.G. Arsa Ofisi partnership. 129. On 26 December 2007 the YRC, hearing and determining as a consumer court, allowed in part the claim concerning the pecuniary damage suffered, awarding a sum of TRY 3,092. 93 to be shared among the different complainants, in accordance with their respective places in their parents ’ succession. The YRC also awarded a sum of TRY 1, 000 in respect of the non-pecuniary damage caused by the death of the claimants ’ mother and TRY 1, 000 in respect of the non-pecuniary damage caused by their father ’ s death. 130. On 28 March 2008 the respondent party appealed on points of law. 131. On 20 November 2008 the Court of Cassation dismissed that appeal under a judgment which became final on 27 January 2009. | This case concerned the deaths of the applicants’ family members, who were buried alive under buildings that collapsed in the town of Çınarcık – located in a region classified as “major risk zone” on the map of seismic activity – in an earthquake on 17 August 1999, one of the deadliest earthquakes ever recorded in Turkey. |
316 | Dissolution or prohibition of political parties or associations | I. THE CIRCUMSTANCES OF THE CASE 8. The first applicant, the political party Herri Batasuna, was founded on 5 June 1986. 9. The second applicant, the political party Batasuna, was founded on 3 May 2001. A. Background to the case 10. On 27 June 2002 the Spanish parliament enacted Institutional Law no. 6/2002 on political parties ( Ley Orgánica 6/2002 de Partidos Políticos – “ the LOPP”). According to its explanatory memorandum, that Law was intended to develop Articles 1, 6, 22 and 23 of the Spanish Constitution by amending and updating Law no. 54/1978 of 4 December 1978 on political parties, regard being had to the experience acquired over the years, and to establish a complete and coherent framework for political parties, reflecting their role in a consolidated democracy. 11. The main innovations introduced by the new Law appeared in Chapter II on the organisation, functioning and activities of political parties, and in Chapter III on their dissolution and suspension by the courts of their activities. 12. Chapter II lays down the basic criteria intended to ensure compliance with the constitutional requirement that the organisation and operation of political parties be democratic and that they may freely engage in their activities in accordance with the Constitution and the law. Section 9 requires parties to respect democratic principles and human rights, describing in detail the type of conduct that would be in breach of the principles in question. According to the explanatory memorandum, the Law is based on the principle that any project or objective is constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens. The Law is not intended to prohibit the defence of ideas or doctrines calling into question the constitutional framework. Its aim is rather to reconcile freedom and pluralism with respect for human rights and the protection of democracy. The explanatory memorandum states that a party may be dissolved only in the event of repeated or accumulated acts which unequivocally prove the existence of undemocratic conduct at odds with democracy and in breach of constitutional values, democracy and the rights of citizens. In that connection, sub-paragraphs ( a), (b ) and ( c) of paragraph 2 of section 9 draw a clear distinction between organisations which defend their ideas or programmes, whatever they may be, in strict compliance with democratic methods and principles, and those whose political activity is based on an accommodation with violence, political support for terrorist organisations or violation of the rights of citizens or democratic principles. 13. Chapter III sets out the grounds on which political parties may be dissolved or their activities suspended by order of the court and describes the applicable procedure in the courts. The Law invests the “ special Chamber ” of the Supreme Court established by section 61 of the Judicature Act ( Ley Orgánica del Poder Judicial – “ the LOPJ ” ) with jurisdiction for the dissolution of political parties. Furthermore, provision is made for specific priority proceedings, involving a single level of jurisdiction, which may be brought only by the public prosecutor ’ s office or the government, of their own motion or at the request of the Chamber of Deputies or the Senate. According to the LOPP ’ s explanatory memorandum, the proceedings in question are intended to reconcile the principle of legal certainty and the rights of the defence with the principle of promptness and a reasonable time -limit. The judgment delivered by the Supreme Court upon completion of those proceedings may be challenged only by way of an amparo appeal to the Constitutional Court. Section 12 details the effects of the court-ordered dissolution of a political party. Once the judgment has been served, the dissolved party must cease all activity. Furthermore, it may not set up a political organisation or use an existing party with a view to pursuing the activities of the party that has been declared illegal and dissolved. In order to rule as to whether or not there is any continuity between an existing party and a party which has been dissolved, the Supreme Court has regard to whether any “substantial similarity” exists between the structure, organisation and operation of the parties in question, or other evidence such as the identity of their members or leaders, their funding or their support for violence or terrorism. The assets of a dissolved political party are liquidated and transferred to the Treasury to be used for social and humanitarian purposes. 14. The LOPP was published in the Official Gazette of the State on 28 June 2002 and came into force the following day. B. Proceedings to dissolve the applicant parties 15. The facts of the case, as submitted by the parties, may be summarised as follows. 1. Founding of the applicant parties as political parties 16. Founded as an electoral coalition, the political organisation Herri Batasuna took part in the general elections of 1 March 1979 ( the first elections in Spain following the entry into force of the 1978 Constitution ). On 5 June 1986 it was entered into the register of political parties at the Ministry of the Interior. 17. Following the Supreme Court ’ s sentencing on 1 December 1997 of twenty-three members of Herri Batasuna ’ s national directorate to imprisonment for collaboration with an armed organisation, Euskal Herritarrok ( “ EH ” ) was set up on 2 September 1998 to stand in the Basque elections of 25 October 1998, initially as an association of voters and then as a political party. 18. On 3 May 2001 Batasuna filed documents at the register of political parties seeking registration as a political party. 2. Action brought by the autonomous government of the Basque Country challenging the constitutionality of the LOPP 19. On 27 September 20 02 the Basque autonomous government brought an action before the Constitutional Court challenging the constitutionality of the LOPP, criticising in particular sections 1 ( 1 ), 2 ( 1 ), 3 ( 2 ), 4 (2) and ( 3 ), 5 ( 1 ), 6 and 9, Chapter III ( sections 10 to 12) and paragraph 2 of the sole transitional provision of that Law. 20. By a judgment of 12 March 2003, the Constitutional Court declared the impugned Law constitutional. As regards the very existence of such a Law making provision for the dissolution of political parties and its purpose which, according to the Basque government, consisted of “ establishing a model of militant democracy imposing restrictions on political parties, in particular by imposing on them an obligation, not provided for in the Constitution, to accept a given political regime or system ”, the Constitutional Court stated : “ According to the applicant government, the argument set out above is based on references in certain paragraphs of sections 6, 9 and 10 of the LOPP to the ‘ constitutional values expressed in constitutional principles and human rights ’ ( section 9 ( 1) ), to ‘ democratic principles ’ ( sections 6 and 9 ( 2) ), to the ‘ system of liberties ’ and to the ‘ democratic system ’ ( sections 9 ( 2 ) and 10 ( 2 ), sub- paragraph ( c) ), to the ‘ constitutional order ’ and to ‘ public peace ’ ( section 9 ( 2 ), sub- paragraph ( c) ). Despite the fact that the legal significance of those references can be grasped only in the context of each of the provisions containing them and that each of the provisions in question must in turn be interpreted in the light of the law and of the legal system as a whole, the Basque government ’ s submission that there is no place, in our constitutional order, for a model of ‘ militant democracy ’ within the meaning given to that expression by the Government, namely, a model in which not only compliance with, but also positive acceptance of, the established order and first and foremost the Constitution is required, must be endorsed ... The impugned Law allows for no such model of democracy. Right at the outset, the explanatory memorandum lays down the principle of a distinction between the ideas and aims proclaimed by political parties, on the one hand, and their activities, on the other, and states that ‘ the only aims explicitly vetoed are those which fall within the criminal law ’, so that ‘ any project or objective is deemed to be constitutional provided that it is not pursued by means of activities which breach democratic principles or the fundamental rights of citizens ’. Consequently, and as regards the aspect which is of particular interest here, the Law lists as grounds for illegality ‘ conduct ’ – that is to say, acts – of political parties which, through their activities, and not through the ultimate aims proclaimed in their manifestos, fail to satisfy the requirements of Article 6 of the Constitution, which the impugned Law merely mentions. ... Secondly, and most importantly, it is clear that the principles and values to which the Law refers can be none other than those proclaimed by the Constitution, and that their content and scope depend on the meaning arising out of the interpretation of the positive constitutional provisions as a whole. Thus, in our system, ‘ democratic principles ’ can only be principles specific to the democratic order arising out of the institutional and normative fabric woven by the Constitution, the actual functioning of which leads to a system of powers, rights and balances giving form to a variant of the democratic model which is precisely that assumed by the Constitution in establishing Spain as a social and democratic State governed by the rule of law (Article 1 § 1 of the Constitution).” 21. As regards the applicant parties ’ argument that the provisions of the Law, namely some of the cases referred to in section 9 ( 3 ) (tacit support, for example ), established a “ militant democracy ” in breach of the fundamental rights of freedom of ideology, participation, expression and information, the Constitutional Court stated : “ ... the system established by the first three paragraphs of section 9 of the LOPP must firstly be described. The first paragraph refers not to a positive adherence of any kind but to simple respect for constitutional values, which must be demonstrated by political parties when engaging in their activities and which is compatible with the broadest ideological freedom. Paragraph 2 provides that a political party may be declared illegal only ‘ when as a result of its activities, it infringes democratic principles, in particular when it seeks thereby to impair or to destroy the system of liberties, to hinder or to put an end to the democratic system by repeatedly and seriously engaging in any of the conduct described below ’. Lastly, sub- paragraphs ( a), ( b) and ( c ) list the general criteria for a party to be declared illegal on account of its activities ... As regards paragraph 3 of section 9 of the LOPP, the flawed drafting of its introduction might suggest that the instances of behaviour described by that provision are in addition to those specified in the preceding paragraph and that they must therefore be interpreted separately. However, an interpretation of these two provisions taken together and an interpretation of the whole section which contains them show that the instances of behaviour described in paragraph 3 of section 9 have the general features described in paragraph 2 of the same section. The instances of behaviour referred to in section 9 ( 3 ) of the Law merely specify or clarify the principal causes of illegality set out in general terms in section 9( 2 ) of the Law. A separate interpretation and application of such conduct can be done only on the basis of the cases provided for in section 9 ( 2 ). That having been said, while it is not for the Constitutional Court to determine whether or not mere failure to condemn [terrorist acts] can be construed as implicit support for terrorism, it is clear that symbolic actions can be used, in certain circumstances, to legitimise terrorist acts or excuse or minimise their anti-democratic effects and implicit violation of fundamental rights. In such circumstances it is plainly impossible to speak of a violation of the right to freedom of expression. ... The same can be said, in general, of sub- paragraph ( c) of section 10 ( 2 ) of the LOPP, which provides : ‘ where, through its activities, it repeatedly and seriously violates democratic principles or seeks to impair or to destroy the system of liberties or to hinder the democratic system or to put an end to it by means of the conduct referred to in section 9. ’ It must also be stated in this regard that that provision concerns only the activities of political parties and in no way extends to their aims or objectives. The wording of that provision shows, therefore, that only those parties which through their activities rather than their ideology effectively and proactively seek to ‘ impair or to destroy the system of liberties ’ are liable to be dissolved. ” 22. As regards the Basque government ’ s complaint that the dissolution measure prescribed by law was disproportionate, the Constitutional Court stated: “ ... taken separately, none of the conduct described in section 9 of the LOPP can entail a party ’ s dissolution. In order for that measure to be pronounced, as stated in section 9( 2 ), the conduct in question must be engaged in ‘ repeatedly and seriously ’. Secondly, it must be pointed out that the existence of a party which, through its activities, collaborates with or supports terrorist violence, jeopardises the survival of the pluralist order proclaimed by the Constitution and that, faced with that danger, dissolution would appear to be the only sanction capable of repairing the damage done to the legal order. Lastly, it must be stressed that Article 6 of the Constitution contains a definition of a party. According to the Constitution, a party may only be considered a party if it is the expression of political pluralism. Consequently, it is quite acceptable, constitutionally, for a party whose activities undermine pluralism and to a greater or lesser extent destabilise the democratic order, to be dissolved. Similarly, the European Court of Human Rights has considered that even though the margin of appreciation left to States must be a narrow one where the dissolution of political parties is concerned, where the pluralism of ideas and parties inherent in democracy is in danger, a State may forestall the execution of a policy at the root of that danger [ Refah Partisi ( the Welfare Party) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001]. ... it is not sufficient to establish the existence of just one of the acts described by the Law. On the contrary, those acts need to be engaged in ‘ repeatedly and seriously ’ ( section 9( 2) ) or ‘ repeatedly or cumulatively ’ ( section 9 ( 3) ). ... To conclude, [ the relevant provisions ] describe particularly serious conduct and establish as grounds for dissolution only those which are manifestly incompatible with the peaceful and lawful means which are an essential part of the process of political participation to which the Constitution requires political parties to lend their qualified support. ... The criteria established by the case-law of the European Court of Human Rights as regards the dissolution of political parties have therefore been complied with ( United Communist Party of Turkey and Others v. Turkey, 30 January 1998, Reports of Judgments and Decisions 1998 ‑ I; Socialist Party and Others v. Turkey, 25 May 1998, Reports 1998 ‑ III; Freedom and Democracy Party (ÖZDEP) v. Turkey [GC], no. 23885/94, ECHR 1999-VIII; Refah Partisi ( the Welfare Party ) and Others v. Turkey, nos. 41340/98, 41342/98, 41343/98 and 41344/98, 31 July 2001 and [GC], ECHR 2003 ‑ II; Yazar and Others v. Turkey, nos. 22723/93, 22724/93 and 22725/93, ECHR 2002 ‑ II; and Dicle for the Democratic Party (DEP) of Turkey v. Turkey, no. 25141/94, 10 December 2002). That case-law states that in order to comply with the European Convention on Human Rights, the dissolution of a party must satisfy certain criteria, namely : ( a) the law must include the circumstances and causes of dissolution (that criterion is clearly satisfied by the rules at issue, since they are set out in a formal law ); ( b) the aim pursued must be legitimate ( which, as indicated above, consists in the instant case of protecting the democratic process of political participation through the exclusion of any associative organisation which could be likened to a party exercising an activity not falling within the constitutional definition of political parties); and ( c) the dissolution must be ‘ necessary in a democratic society ’ (demonstrated in the context of the foregoing analysis of the specific causes of dissolution provided for by law). ... The fact that convicted terrorists are regularly appointed to positions of leadership or entered on lists of candidates for election may appear to constitute an expression of support for terrorist methods which goes against the obligations imposed by the Constitution on all political parties. Furthermore, the fact that such a practice can be taken into account only if the convicted terrorists have not ‘ publicly rejected terrorist aims and methods ’ cannot be interpreted as an obligation to disavow earlier activities. The provision in question [ section 9 ( 3 ) ( c)] is of prospective effect only and applies only to political parties which are led by convicted terrorists or whose candidates are convicted terrorists. It lays down as a cause of dissolution the regular use of people who may legitimately be assumed to sympathise with terrorist methods rather than with any ideas and programmes that terrorist organisations might seek to implement. ... ” 23. Lastly, as regards the Basque government ’ s complaint that the principle of non- retrospectivity in relation to section 9 ( 4 ) of the LOPP and paragraph 2 of the sole transitional provision had been violated, the Constitutional Court held : “ For the purposes of applying section 9( 4 ) of the LOPP, which lists the factors that can be taken into account in assessing and characterising activities that may give rise to the dissolution of a political party, the aforementioned paragraph characterises as unlawful ‘ the establishment, on a date immediately preceding or following the date of entry into force, of a political party which pursues the activities of another party or succeeds that party with a view to evading application of the provisions of this Law in respect of it ’. Worded as it is, that provision cannot be held to be unconstitutional as it is quite clear that its sole purpose is to enable section 9 ( 4 ) of the LOPP to be applied ‘ to activities pursued after the entry into force of this Institutional Law ’, as stated therein. In no circumstances does it make provision for the judging of activities and acts prior to the LOPP, since only those subsequent to the entry into force of the Law are deemed to be relevant. In other words, the Law specifically states that the various causes that may lead to dissolution of a party may be taken into account only after its entry into force. The activities considered separately and ‘ the continuing nature or repetition ’ of the activities mentioned in section 9( 4 ), to which the transitional provision refers, are subsequent to the entry into force of the LOPP. That said, for the purposes of determining the significance of those activities and assessing their relevance to the overall conduct of the party concerned ( and for that purpose only, since to take account of conduct pre - dating the effective date of the Law in order to justify a declaration of unlawfulness would be unconstitutional because it would constitute a breach of the principle of non- retrospectivity enshrined in Article 9 § 3 of the Constitution), it is perfectly possible to take into consideration what the Law refers to as the ‘ trajectory ’ ( section 9 ( 4 ) ) of the party in question, which trajectory could encompass acts prior to the entry into force of the Law, but that cannot in any way be considered as a retrospective effect under the Constitution .” 24. The Constitutional Court also rejected the complaints based on the principle of non bis in idem, the lack of foreseeability and the exceptional nature of the Law, the specific features of the judicial proceedings and the allegations concerning the system for founding and registering political parties. Accordingly, it dismissed the applicant parties ’ claims, stating in paragraph 23 of its reasoning that sections 3 ( 1 ), 5 ( 1 ), 9 ( 2 ) and ( 3 ) and paragraph 2 of the sole transitional provision of the LOPP were constitutional only if “ interpreted in accordance with the terms set out in paragraphs 10, 11, 12, 13, 16, 20 and 21 ” of the reasoning of its judgment. 25. The government of the Autonomous Community of the Basque Country subsequently lodged an application with the Court ( no. 29134/03), which was declared inadmissible on the ground of incompatibility ratione personae on 3 February 2004. 3. The proceedings to dissolve the applicant parties 26. Meanwhile, by a decision of 26 August 2002 delivered in the context of criminal proceedings for illegal association ( Article 515 of the Spanish Criminal Code ), central investigating judge no. 5 at the Audiencia Nacional had ordered the suspension of Batasuna ’ s activities and the closure, for three years, of any headquarters and offices that could be used by Herri Batasuna and Batasuna. The same measure was applied to EH, which is not an applicant before the Court. 27. On 2 September 2002, implementing an agreement adopted by the Council of Ministers on 30 August 2002, the Attorney - General ( Abogado del Estado ) lodged an application with the Supreme Court on behalf of the Spanish government for the dissolution of the political parties Herri Batasuna, EH and Batasuna on the ground that they had breached the new LOPP on account of various acts which conclusively demonstrated conduct inconsistent with democracy, constitutional values, democratic practice and the rights of citizens. 28. On the same day, State Counsel ( Procurador General ) also filed an application with the Supreme Court with a view to the dissolution of the political parties Herri Batasuna, EH and Batasuna in accordance with sections 10 et seq. of the LOPP. In his application, he asked the Supreme Court to find that the parties in question were illegal, and order that they be removed from the register of political parties, that they immediately cease their activities and that the effects of the Law be extended to any party newly created in breach of the Law or succeeding any of the parties concerned, that their assets be liquidated and that they be dissolved in accordance with section 12( 1 ) of the LOPP. 29. On 10 March 2003 Batasuna sought the referral of a preliminary question to the Constitutional Court concerning the constitutionality of the LOPP as it was of the view that the Law as a whole, and several of the sections thereof taken separately, violated the rights to freedom of association, freedom of expression and freedom of thought, and the principles of lawfulness, legal certainty, non- retrospectivity of less favourable criminal laws, proportionality and non bis in idem, as well as the right to take part in public affairs. 30. By a unanimous judgment of 27 March 2003, the Supreme Court refused to refer Batasuna ’ s question to the Constitutional Court, pointing out that that organisation ’ s challenges to the constitutionality of the LOPP had already been examined and rejected in the Constitutional Court ’ s judgment of 12 March 2003. It declared Herri Batasuna, EH and Batasuna illegal and pronounced their dissolution under sections 9 ( 2 ) and ( 3 ) of the LOPP on the ground that they were part of “ a terrorist strategy of ‘ tactical separation ’ ”. It considered that significant similarities between the three parties at issue, and between them and the terrorist organisation ETA – “ three organisations having substantially the same ideology ... and, moreover, tightly controlled by that terrorist organisation ” – had been established. It concluded that in reality there existed a “ single entity, namely, the terrorist organisation ETA, hidden behind an apparent plurality of legal entities created at different times according to an ‘ operational succession ’ devised in advance by that organisation ”. It also liquidated the assets of the parties at issue, in accordance with section 12 ( 1 )( c) of the same Law. 31. The Supreme Court noted in its judgment that, while political parties constituted the essential foundations of political pluralism, they had to engage in their activities and pursue their aims and objectives in accordance with the law and democratic processes, stating that activities involving the use of violence or restricting the fundamental rights of others could not be tolerated. The Supreme Court referred to the Spanish constitutional system, which, in its view, unlike other legal systems, did not constitute a model of “ militant democracy ”, since the only condition imposed on the expression of differences was respect for the rights of others. It pointed out that the LOPP recognised that any project or objective was constitutional provided that it was not “ pursued by means of activities which breach [ ed ] democratic principles or the fundamental rights of citizens ”. In that regard, it pointed out that, by law, political parties were liable to be declared illegal only on the basis of “ activities ” consisting of serious and repeated conduct. In the instant case, according to the Supreme Court, the calls to violence justifying the restriction of the freedoms of the parties at issue stemmed from a deliberate apportionment of tasks between terrorism and politics, ETA devising “ justification of the need for terrorism as one of the functions” entrusted to Herri Batasuna. 32. Bearing in mind the historical and social context of the fight against terrorism in Spain, the Supreme Court held that the terrorist organisation ETA and its satellite organisation, Koordinadora Abertzale Sozialista ( “KAS ” ), had been directing Herri Batasuna since its creation. To reach that conclusion, it relied on evidence demonstrating the existence of hierarchical links between the three organisations and revealing, in particular, that KAS, as ETA ’ s delegate, had controlled the process of appointing the most senior members of Herri Batasuna and its successors (EH and Batasuna ) and had participated in it. The Supreme Court held that Herri Batasuna had been created in response to ETA ’ s wish to split armed activity and mass activity “ organically and structurally ”, which resulted in “ clear hierarchical submission ” of the parties at issue to the terrorist organisation ETA. In that connection, it referred to a KAS internal document which read as follows : “ KAS ... considers that armed struggle in association with mass struggle and institutional struggle – the latter serving the former – is the key to the advance and triumph of the revolution; mass struggle likewise requires an historical alliance of Popular Unity, the physical manifestation of which is Herri Batasuna. ” 33. As regards the “ operational succession ” held to exist between the three political parties that had been declared illegal, the Supreme Court relied on the fact that the people occupying posts of responsibility within the three organisations – notably their spokesperson, A.O. – and belonging to different parliamentary groups, were the same. It also took account of the existence of premises used by all the parties at issue. As regards links between the applicant parties and the terrorist organisation ETA, it noted that several of their members, in particular their spokesperson, A.O., had been convicted of terrorism- related offences. 34. The Supreme Court held that the evidence set out below, subsequent to the date of entry into force of the LOPP, showed that the applicant political parties were instruments of ETA ’ s terrorist strategy. – On 3 July 2002 Batasuna had refused to appoint representatives to the Basque parliamentary committee responsible for the situation and needs of victims of terrorism, as it considered it to be “political, manipulated and biased”. – On 3 July 2002, reacting to the decision of central investigating judge no. 5 at the Audiencia Nacional by which Batasuna had been declared civilly liable for damage caused by street violence ( kale borroka ), A.O., the spokesperson for that organisation, had exhorted the Basque people to respond “ energetically to this new attack” and had criticised the decision for having provoked a “ serious and anti-democratic situation ”. – On 7 July 2002, during a commemoration of the 1936 battle of Monte Albertia, A.O. had made the following statement : “ We must continue to work and to struggle, either within or outside the law. The reality is that we will not falter because we are at a point in history where the process we have undertaken must be rendered irreversible. ” – On 13 July 2002 the mayor and a Batasuna councillor of the municipality of Lezo had taken part in a demonstration in support of ETA terrorists living in Venezuela. – On 16 July 2002, at a gathering outside the San Sebastian navy command, a Batasuna municipal spokesperson, referred to as J.L., had explained that the purpose of that demonstration was to let the State authorities know “ that they could not move around with impunity in Euskal Herria ”. – On 19 July 2002 J.E.B., Batsuna ’ s spokesperson in the municipality of Vitoria, had stated that Batasuna “ didn ’ t want ETA to stop killing, but did not want Euskal Herria to have recourse to any kind of violence and wanted those who engaged in it to cease to exist”. – At a plenary session of the municipal council on 30 July 2002 Batasuna had refused to condemn the campaign of threats against councillors of the Basque Socialist Party (PSE-EE) in the municipality of Amorebieta. – At a press conference on 2 August 2002 concerning the potential handover to Spain of K.B., an ETA member convicted in France, the mayor and the chairman of the Human Rights Committee of the municipality of Ondarroa, L.A. and A.A., Batasuna members, had declared that they supported K.B. and “ all those who [ were ] in the same situation ”. – Batasuna and its leaders had refused to condemn the Santa Pola attack of 4 August 2002 in which two people had died. In that regard, during a press conference in Pamplona A.O. had described that event as a “ painful consequence ” of the failure to solve the “ political conflict ” in the Basque Country and had accused the Spanish Prime Minister [ then J.M. Aznar] “ of bearing the greatest responsibility” for “ what [had happened] [at] that time and what [ might ] happen in future ”. – Municipalities run by Batasuna and that party ’ s website had used an anagram of “ Gestoras Pro- Amnistía ”, an organisation that had been declared illegal by central investigating judge no. 5 at the Audiencia Nacional and was on the European list of terrorist organisations ( Council Common Position 2001/931/PESC). – At a demonstration organised by Batasuna in San Sebastian on 11 August 2002 and run by Batasuna ’ s leaders A.O., J.P. and J.A., slogans supporting ETA prisoners and threatening expressions such as “ borroka da bide bakarra ” ( the struggle is the only way ), “ zuek faxistak zarete terroristak ” ( you, the Fascists, are the real terrorists ) or “ gora ETA militarra ” ( long live ETA military ) had been used. – On 12 and 14 August 2002, Batasuna -run town halls had put up placards on their facades supporting terrorism or those engaging in terrorism, alluding to the transfer of “ Basque prisoners to the Basque Country ” and showing photographs of several terrorists. – At a Batasuna press conference held in Bilbao on 21 August 2002, A.O. had criticised the “ Spanish State ’ s genocide strategy ” and proclaimed that the Basque people were going to “ organise themselves ” and “ fight ” so that some “ little Spanish Fascist ” could never again tell Basques what their institutions should be. He had also warned the government of the Autonomous Community of the Basque Country ( nationalist government coalition ) that if it took part in closing down Batasuna headquarters, the result would be “ an unwanted scenario ”, expressions which had been interpreted the following day by the media as “ a threat against the Basque executive ”. – During an interview with the newspaper Egunkaria on 23 August 2002, J.U., Batasuna ’ s representative in the Basque parliament, had stated that “ ETA [ did ] not support armed struggle for the fun of it, but that [ it was ] an organisation conscious of the need to use every means possible to confront the State”. – On 23 August 2002 at a Batasuna meeting held in Bilbao following the demonstration organised by that party against its dissolution, J.P. had criticised the leaders of the Basque Nationalist Party for abiding by Spanish law, accusing them of lacking “ national dignity ”. He had also encouraged the participants to “ go out into the street and respond vigorously ”. – Municipalities governed by the parties in question had advocated terrorist activities, as evidenced by the fact that two ETA terrorists had been made honorary citizens ( hijo predilecto ) by the municipalities of Legazpia and Zaldibia. – Since 29 June 2002 Batasuna council representatives in Vitoria and Lasarte-Oria had been committing acts of harassment against the representatives of non- nationalist parties, thus contributing to a climate of civil confrontation. – Municipalities governed by Batasuna had displayed sketches and placards calling for a struggle against the State, against representatives of State power, against other political parties or members of those parties, notably the Prime Minister of the Spanish government and the leaders of the Partido Popular and the Spanish Socialist Party. – After the entry into force of the LOPP, the three parties at issue had continued to pursue the same strategy of complementing, on a political level, the actions of the terrorist organisation ETA in the context of a jointly organised “ operational succession ”. 35. Relying on the above evidence, the Supreme Court held that the activity of the applicant political parties, as manifested through conduct in line with a strategy predefined by the terrorist organisation ETA, consisted of “ providing assistance and political support to the actions of terrorist organisations with the aim of overthrowing the constitutional order or seriously disturbing the public peace ”, within the meaning of section 9 ( 2 ) ( c) of the LOPP. It concluded that the conduct of which the applicant parties had been accused corresponded to the cases referred to in sub-paragraphs ( a), ( b), ( d), ( f) and ( h) of paragraph 3 of section 9 of that Law. It stated firstly that some of the conduct described, such as Batasuna ’ s demonstration in San Sebastian, where pro-ETA slogans had been heard, could be characterised as explicit political support for terrorism, while other conduct, such as the refusal of Batasuna and its leaders to condemn the Santa Pola attack of 4 August 2002, sought to “ justify terrorist actions and minimise their importance and the violation of the fundamental rights arising therefrom ”. In that connection, the Supreme Court stated : “ In the constitutional context, the existence of political parties which, from an intellectual point of view, fail to take a clear and unequivocal stance against terrorist activities or which, with calculated ambiguity, systematically seek to conceal the fact that they do not disavow criminal acts by officially deploring the consequences thereof without, however, censuring in any way the barbaric behaviour of those who cause such acts through the use of violence to achieve their objectives, cannot be tolerated. ... For the purposes of these proceedings, the repeated strategic and systematic silence of a political party concerning terrorist activities can only be interpreted, from a political and constitutional viewpoint, as a clear sign of their ‘ acceptance by omission ’ or ‘ implicit acceptance ’, that is, as their alignment with the arguments of the perpetrators of those criminal actions and the tacit acceptance of violence as a means of achieving set objectives which, in our constitutional system, can only be achieved by peaceful means. ” 36. The court held, secondly, that other conduct of which the applicant parties had been accused, such as the harassment of representatives of non-nationalist parties in the municipalities of Vitoria and Lasarte -Oria, had contributed to the emergence of a climate of civil confrontation intended to intimidate opponents of terrorism and deprive them of their freedom of opinion. 37. It observed, thirdly, that conduct such as publicly describing ETA prisoners as political prisoners or using the anagram of “ Gestoras Pro- Amnistía ” proved that the parties at issue were using symbols reflecting terrorism or violence. It noted, lastly, that the applicant parties had also taken part in activities in praise of terrorist activities. 38. Turning to the need for and the proportionality of the dissolution of the applicant parties, the Supreme Court pointed out that it was taking account of the text of the Convention and of the Court ’ s case-law, which would serve as a guide in the interpretation of fundamental constitutional rights, in accordance with Article 10 § 2 of the Spanish Constitution. It considered that, in view of the applicant parties ’ frequent calls to violence, as established by the above-mentioned evidence, the measure to dissolve the applicant parties had been justified for the purposes of protecting the fundamental rights of others, “ a necessary element of democracy ”. The Supreme Court referred in particular to the Court ’ s judgment in Refah Partisi ( the Welfare Party) and Others v. Turkey ( [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003 ‑ II), considering that that judgment imposed on parties claiming to exercise functions in a democratic society a real legal duty to distance themselves from any ambiguous or unclear messages as to the use of violence ( ibid. , § 131). It pointed out furthermore that the calls to violence at issue in the case before it appeared to be more explicit than those at issue in the case submitted to the Court. 4. Amparo appeal to the Constitutional Court 39. Batasuna and Herri Batasuna lodged two amparo appeals with the Constitutional Court against the judgment of the Supreme Court. 40. In their appeals, they complained firstly of the lack of impartiality of the President of the Supreme Court, who had been the reporting judge in the proceedings leading to their dissolution even though he was the president of the Judicial Council, the body which had issued a favourable report on the bill resulting in the Law at issue. They submitted that the conflation of jurisdictional and consultative functions in one person had resulted in a loss of objective impartiality. Batasuna relied in that regard on Article 24 § 2 of the Constitution ( right to a fair hearing before an independent and impartial tribunal ). 41. Secondly, the applicant parties alleged that the guarantees of a fair trial had not been rigorously observed in so far as the dissolution of Batasuna had been based, inter alia, on the conduct attributed to certain Zaldibia and Legazpia municipal councillors, who had made an alleged member of ETA and an ETA member who had been convicted and had served his sentence honorary citizens ( hijo predilecto ), facts which had been established ex parte, after completion of the phase of the proceedings during which new evidence could be introduced and without the applicant parties having been able to defend themselves against such allegations. 42. They complained, thirdly, of a violation of the presumption of innocence, submitting that the facts deemed to have been proven in the judgment of the Supreme Court had been based on a single press release and that Batasuna and its members had been deemed to have carried out acts attributable to another political organisation, namely EH. Moreover, they criticised the judgment of 27 March 2003 for having considered as established fact that Batasuna had been created on the basis of an agreement between the leaders of Herri Batasuna and ETA, and that Herri Batasuna, EH and Batasuna were in fact one and the same organisation which had been assigned certain functions by ETA and which acted under the instructions of the latter, while those allegations had actually been based on documents having no probative value and on the statements of expert witnesses working for the Spanish government. 43. Fourthly, and lastly, the applicant parties considered that their right to freedom of expression, thought and association had been breached as a result of their dissolution. 44. By two unanimous judgments of 16 January 2004 the Constitutional Court dismissed the appeals. 45. In the judgment on Batasuna ’ s amparo appeal, the Constitutional Court repeated the arguments contradicting the applicant parties ’ submissions concerning “ militant democracy ” set out in its judgment of 12 March 2003. It pointed out that “ any project or objective [was] constitutional provided that it [was] not pursued by means of activities which breach [ ed ] democratic principles or the fundamental rights of citizens ”. It also pointed out that “ the constitutionality of section 9 of the LOPP ha [d] been recognised by judgment 48/2003 ” and that “ the answers to the objections raised by Batasuna as to the constitutionality [of the conduct described by the provisions of the Law at issue] could be found in the legal bases of that Law ”. 46. The Constitutional Court stated : “ The refusal of a political party to condemn terrorist attacks can be seen, in certain cases, as ‘ [ ... ] tacit political support for terrorism ’ [ section 9 ( 3 )( a) LOPP], or ‘ legitimising terrorist actions for political ends ’ [ section 9 ( 3 )( a) LOPP], in so far as it may excuse terrorism or minimise the significance thereof ... The failure to condemn terrorist actions also constitutes a tacit or implicit manifestation of a certain attitude towards terror. ... Against a backdrop of terrorism that has been in place for over thirty years, with those responsible always legitimising terror by claiming equality between the types of forces fighting each other and by presenting it as the only possible solution to an allegedly historical conflict, the refusal of a party to condemn a specific terrorist attack, which undeniably reflects that party ’ s wish to disassociate itself from the condemnatory stance taken by other parties in relation to such acts, is all the more significant since it reflects the position of a party which has sought to pass off the terrorist phenomenon as an inevitable reaction to the past and unjust aggression of a terrorised State. ... Furthermore, ... the refusal to condemn [ terrorist acts ], combined with serious and repeated acts and conduct, indicates an accommodation with terror which runs counter to organised coexistence in the context of a democratic State. ... It must therefore be concluded that it would not appear to be unreasonable or erroneous to take account of facts judicially established in proceedings having observed all the guarantees covering the grounds for dissolution laid down by the LOPP – whose unconstitutionality in abstracto was ruled out by Constitutional Court judgment no. 48/2003 – thus ruling out any possibility of a breach of Article 24 of the Constitution, and that no substantive fundamental right, such as the right of political association ( Articles 22 and 6 of the Constitution), the right to freedom of conscience ( Article 16 § 1 of the Constitution) and the right to freedom of expression ( Article 20 § 1 ( a) of the Constitution) has been breached .” 47. Lastly, in the reasoning of its judgment the Constitutional Court pointed out that in its appeal, Batasuna had literally alleged that the effect of the LOPP “ had been to deprive ideologies linked to terrorism and violence of any possibility of developing lawfully, in breach of the procedural definition of democracy”, and had argued that the Law at issue declared unlawful “the mere fact of providing political and ideological support to the actions of terrorist organisations with the aim of overthrowing the constitutional order ”. It held that this “ link with terrorism and violence ” ... “ fell outside the constitutionally legitimate scope of the exercise of freedom of association and freedom of expression and could therefore be prohibited by the democratic legislature”. 48. As regards Herri Batasuna ’ s amparo appeal, the Constitutional Court again referred to its judgment of 12 March 2003, in which it had indicated that the various causes of dissolution of parties could only be taken into account as of the entry into force of the Law, stating, however, that “ for the purpose of determining the significance [ of the activities listed by the Law ] and assessing their importance having regard to the overall conduct of the party at issue ( and for such purposes only, since to take account of conduct prior to the entry into force of the Law in order to justify a declaration of illegality [ would have been ] unconstitutional in that it [ would have ] breached the principle of non- retrospectivity enshrined in Article 9 § 3 of the Constitution), it [ was ] perfectly possible to take into consideration what the Law called the ‘ trajectory ’ ( section 9 ( 4 ) ) of the party at issue which could encompass conduct prior to the entry into force of the Law, without it being possible in any circumstances to consider that to be a case of retrospective application prohibited by the Constitution ”. The Constitutional Court pointed out that the applicant party had not been dissolved because of acts pre-dating the entry into force of the Law or conduct attributable to other parties, but because it had been held that Batasuna, Herri Batasuna and EH “ constituted ‘ successive units ’ of a single reality – namely a political organisation used as a tool by a terrorist group for unlawful purposes –, that the successive forms assumed by a single political party had de facto been dissolved, and that the dissolution pronounced by the Supreme Court had been based on subsequent facts stated as being entirely attributable to the applicant party on account of the fact that the Supreme Court had found the three dissolved parties to be materially identical ”. 49. Lastly, the Supreme Court dismissed the complaints of lack of impartiality and failure to comply with the principle of adversarial proceedings as lacking any constitutional basis. 5. Subsequent events 50. On 6 June 2007 ETA ended the ceasefire that it had declared on 24 March 2006. Since that date, several fatal attacks have been carried out in Spain. | Having previously been established as an electoral coalition Herri Batasuna was registered as a political party in 1986 and Batasuna sought registration as a political party in 2001. In 2003, the Spanish Supreme Court declared both parties illegal, ordered their dissolution and liquidated their assets. It referred to the 2002 law on political parties, finding that the parties were part of “a terrorist strategy of ‘tactical separation’” and that there were significant similarities between them and the terrorist organisation ETA. |
496 | Entitlement to a refugee card (and thus to housing assistance) | I. THE CIRCUMSTANCES OF THE CASE A. Introduction 5. On 19 September 1974 the Council of Ministers of the Republic of Cyprus approved the introduction of a scheme of aid for displaced persons and war victims. Under the scheme, displaced persons were entitled to refugee cards. The holders of such cards were (and still are) eligible for a range of benefits including housing assistance. For the purposes of the scheme the term “displaced” was determined as being any person whose permanent home was in the areas occupied by the Turkish armed forces, in an inaccessible area, or in an area which had been evacuated to meet the needs of the National Guard. 6. To implement the scheme, the Director of the Care and Rehabilitation of Displaced Persons Service (“SCRDP”) issued a circular on 10 September 1975. The circular provided that non-displaced women whose husbands were displaced could be registered on the refugee card of their husbands. It also provided that children whose fathers were displaced could be registered on the refugee card of their fathers (see paragraph 20 below). No provision was made for the children of displaced women to be registered on the refugee cards of their mothers. 7. Although the term “displaced” was extended by the Council of Ministers on 19 April 1995 (see paragraphs 23 and 24 below), at the time of the facts giving rise to the present application it had not been extended to allow children whose mothers were displaced but whose fathers were not, to qualify for refugee cards. B. The applicant ’ s application for a refugee card 8. The applicant ’ s mother has been a refugee since 1974. Her mother is the holder of a refugee card. 9. In September 2002, the applicant married and began looking for a house for her family in Kokkynotrimithia. She wished to obtain housing assistance and so, on 27 February 2003, applied to the Civil Registry and Migration Department of the Ministry of the Interior for a refugee card with occupied Skylloura, the place from which her mother was displaced, as her place of displacement. 10. By letter dated 6 March 2003 the request was rejected on the basis that the applicant was not a displaced person because, while her mother was a displaced person, her father was not. C. First instance proceedings before the Supreme Court ( revisional jurisdiction) : recourse no. 436/03 11. The applicant filed a recourse before the Supreme Court challenging the above decision. She claimed, inter alia, that the decision was in violation of the principle of equality safeguarded by Article 28 of the Constitution and in breach of Article 14 of the Convention taken in conjunction with Article 1 of Protocol No. 1. She claimed that it also breached Article 13 of the Convention. 12. A single judge of the Supreme Court dismissed the recourse on 12 May 2004, finding that, on the basis of the relevant case-law, the extension of the applicable criteria so as to cover the children of displaced women was not possible. The question of extending the term “displaced” to cover the children whose mothers were displaced but whose fathers were not had been repeatedly discussed before the House of Representatives ’ Committee for Refugees. A proposal to change the law to that effect had been placed before the Committee but was never approved. Furthermore, because of the consequences which would ensue from such an extension of the term “displaced”, the Minister of the Interior had referred the question to the Council of Ministers for its consideration and, on 19 April 1995, the Council of Ministers had decided not to extend the term in this manner (see the relevant domestic law and practice set out at paragraphs 23 and 24 below). D. Appeal proceedings before the Supreme Court: appeal no. 3830 13. On 23 June 2004 the applicant filed an appeal before the Supreme Court. 14. By judgment of 3 March 2006 a five-judge panel of the Supreme Court dismissed the appeal and upheld the findings of the first instance court. 15. The Supreme Court held as follows: “ [In the present appeal] an attempt was made to demonstrate that we must depart from the above [first instance] decision, since the Supreme Court can, in the present case, proceed to the so-called “ extended interpretation ” and, by invoking the principle of equality, widen the application of the criterion to the children of displaced mothers as well. ... The proposed extension of the plan was placed before the Council of Ministers in Proposal no. 1852/92, which was submitted by the Ministry of the Interior to amend the criteria for providing assistance to displaced persons. However the decision taken refers only to amendments which do not concern the present case. Despite the fact that, on 19 April 1995, by decision no. 42.465 of the Council of Ministers, further amendments were made by which the term ‘ displaced ’ was extended and now includes other categories of those entitled, the point which concerns us in this case remains unchanged. ... In accordance with the case-law ( Dias United Publishing Co Ltd v. The Republic, [ 1996 ] 3 A.A.D. 550), the non-existence of a legislative provision cannot be remedied by judicial decision because, in such a case, the constitutional control which the Supreme Court exercises would be turned into a means of reshaping or supplementing the legislation. ... We have given this matter very serious consideration in view also of the position that, in the case of an arrangement favouring one sex only, the extended application of the provision also finds support in European Community Law ... However this may be, we cannot depart from the prevailing case-law. Dias United Publishing Co Ltd v. The Republic, cited above, fixed the framework of the jurisdiction of the Supreme Court. The Supreme Court has, in accordance with Article 146 (4) of the Constitution, the power to uphold in full or in part the decision appealed against or to declare the act or omission invalid. It does not have jurisdiction to legislate by extending legislative arrangements which did not meet with the approval of parliament. This would conflict with the principle of the separation of powers. We note that the House of Representatives cannot of its own accord enact legislation which would incur expenditure. If the House of Representatives, the constitutionally appointed legislative organ, does not have such a right, the Supreme Court has even less of a right. In agreement with the principles set out above, we conclude that the Supreme Court does not have the competence to proceed to an extended application of a legislative arrangement.” 16. The same issue of the non-extension of refugee cards to the children of displaced women was also considered by the Supreme Court in Anna Giagkozi v. the Republic (case no. 291/2001). That challenge was rejected at first instance on 30 April 200 2 ((2002) 4 A.A.D. 405), the court finding that, while it was difficult to understand why there should not be uniform treatment between the children of displaced men and displaced women, on the basis of Dias United, cited above, it was unable to grant the relief sought. This was because Ms Giagkozi was, in effect, asking the court to extend the relevant legal framework so that the benefits provided to children of displaced fathers would be provided to children of displaced mothers. An appeal against that judgment was dismissed on 3 March 2006 by the same bench which dismissed the present applicant ’ s appeal (the appeal judgment in Giagkozi is reported at ( 2006) 3 Α.Α.D. 85). | The applicant complained about the refusal of the authorities to grant her a refugee card, alleging that this had meant that she had been denied a range of benefits, including housing assistance. She also alleged that denying her a refugee card on the basis that she had been the child of a displaced woman rather than a displaced man had been discriminatory on the grounds of sex and that no authority in Cyprus, including the courts, had examined the merits of her complaint. After the applicant lodged her application to the European Court, the scheme introduced in 1974 for war victims and persons displaced from areas occupied by the Turkish armed forces or evacuated to meet the needs of the National Guard was amended, so that children of displaced women became eligible for housing assistance on the same terms as the children of displaced men as of 2013. |
154 | Medically-assisted procreation | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1977 and 1975 respectively and live in Rome. 8. Following the birth of their daughter in 2006, the applicants learned that they were healthy carriers of cystic fibrosis [1]. The child had been born with the disease. 9. In February 2010, when the first applicant was pregnant again, the applicants, who wanted to have a healthy child unaffected by the genetic disease, had a prenatal test carried out. The results showed that the foetus was affected by cystic fibrosis. The applicants then decided to have the pregnancy terminated on medical grounds. 10. The applicants now want to take advantage of assisted reproduction technology (hereafter “ART”) and preimplantation genetic diagnosis [2] (hereafter “PGD”) before the first applicant becomes pregnant again. However, under Law no. 40 of 19 February 2004, ART is available only to sterile or infertile couples. There is a blanket ban on the use of PGD. 11. By a decree of 11 April 2008, the Ministry of Health extended access to ART to couples in which the man suffers from a sexually transmissible viral disease (such as the HIV virus, or hepatitis B and C) to allow them to conceive children without the risk of contamination of the woman and/or the fœtus inherent in conception by natural means. 12. According to the information provided by the Government and the first third-party intervener, this operation is done by “sperm washing” prior to in vitro fertilisation. | This case concerned an Italian couple who are healthy carriers of cystic fibrosis and wanted, with the help of medically-assisted procreation and genetic screening, to avoid transmitting the disease to their offspring. |
875 | Disclosure of personal data | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Chişinău. At the time of the events she was thirty-four years old and married. She was a lecturer at the Police Academy. 6. It appears from the case-file materials that at the time of the events the relationship between the applicant and her superiors at the Police Academy were tense and that there had been a set of employment- related civil proceedings between them. 7. On an unspecified date in 2003 the applicant underwent artificial insemination at a fertility clinic and became pregnant with twins. On 3 August 2003 she was seen by a doctor from the No. 7 Centre for Family Doctors (“ the CFD)”, an institution belonging to the Ministry of Health, who ordered her hospitalisation on account of an increased risk of miscarriage. The applicant was hospitalised between 4 and 20 August 2003 and was later closely supervised by a doctor from the CFD. It would appear that the applicant ’ s absence from work during her hospitalisation was certified by a sick note referring to her pregnancy and an increased risk of miscarriage as the reasons for her absence. 8. On 5 November 2003 the President of the Police Academy requested information from the CFD in connection with the applicant ’ s medical leave in August 2003. In particular, he asked who had ordered her hospitalisation, when she had been hospitalised, what had been the initial and final diagnoses, and what treatment she had received. 9. In a letter dated 7 November 2003 the CFD informed the applicant ’ s employer that the applicant had been hospitalised between 4 and 20 August 2003 on account of an increased risk of miscarriage. The letter also stated that this was the applicant ’ s first pregnancy and that she was carrying twins; that the pregnancy had resulted from artificial insemination and that the applicant had hepatitis B. The letter further mentioned that the applicant had obstetrical complications and that she had a negative blood type. A copy of the applicant ’ s medical file from the hospital where she had been hospitalised, containing a detailed description of all the medical procedures she had undergone and of all the medical analyses, was annexed to the letter. 10. On an unspecified date the applicant suffered a miscarriage. According to the medical report, one of the factors which had led to the miscarriage was the stress to which she had been subjected. 11. In January 2004 the applicant initiated civil proceedings against the CFD and the Police Academy and claimed compensation for a breach of her right to private life. She argued, inter alia, that her employer had had sufficient information as to the reasons for her medical leave and had not been entitled to seek further details of such a private nature. Moreover, after the information had been obtained it had not been kept confidential but had been disclosed to everybody at the Police Academy. According to the applicant, the disclosure had caused her serious stress and anxiety. Everyone at her workplace, including her students, had learned details about her private life, and different rumours had begun to circulate. Only two days after the disclosure, she had suffered a miscarriage due to the stress to which she had been subjected. Her husband, who had also been an employee of the Police Academy, had had to resign from his post and accept a less well- paid job. 12. On 6 July 2004 the Centru District Court dismissed the applicant ’ s action on the grounds, inter alia, that the disclosure of information by the fertility clinic had been lawful in view of the ongoing investigation being conducted by the applicant ’ s employer. As to the contention that the employer had disclosed the information to other employees, the court found it to be ill-founded. The applicant appealed. 13. On 2 November 2006 the Chişinău Court of Appeal upheld the applicant ’ s appeal and quashed the above judgment. The court found the applicant ’ s action well-founded and ordered the CFD to pay her 20,000 Moldovan lei (MDL) (EUR 1,124) and the Police Academy to pay her MDL 15,000 (EUR 843). The Court of Appeal found that the CFD had disclosed to the applicant ’ s employer more information than had actually been requested. 14. On 10 May 2007 the Supreme Court of Justice upheld the appeal on points of law lodged by the CFD and dismissed the applicant ’ s claims against it. The Supreme Court held that the CFD had acted in accordance with the law when providing the applicant ’ s employer with medical information about her. The CFD had been under an obligation to provide the Police Academy with such information in the context of the latter ’ s legal relationship with its employee. According to the Supreme Court, at the time of the events there were relations of an employment- law and of a criminal - law nature between the Police Academy and the applicant. The Supreme Court considered that the provisions of the laws on reproductive health and on the rights and obligations of the patient were not pertinent to the case. | The applicant, a lecturer at the Police Academy, complained about a State-owned hospital’s disclosure of medical information about her to her employer. The information was widely circulated at the applicant’s place of work and, shortly afterwards, she had a miscarriage due to stress. She unsuccessfully brought proceedings against the hospital and the Police Academy. |
751 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE A. Introduction 8. The first and second applicants, Pine Valley and Healy Holdings, used to have as their principal business the purchase and development of land. The first of these companies, which was a wholly-owned subsidiary of the second, was struck off the register of companies on 26 October 1990 and dissolved on 6 November 1990, for failure to file annual returns for more than eight years. Since 1981 Healy Holdings too has filed no annual returns; on 14 October and 29 November 1985 a receiver to this company was appointed by two secured creditors. The third applicant, Mr Daniel Healy, is the managing director of Healy Holdings and its sole beneficial shareholder; on 19 July 1990, by order of an English court, he was adjudged bankrupt. 9. On 15 November 1978 Pine Valley had agreed to purchase for IR £550,000 21½ acres of land at Clondalkin, County Dublin. It did so in reliance on an outline planning permission (see paragraph 29 below) for industrial warehouse and office development on the site. This permission, which was recorded in the official planning register (see paragraph 31 below), had been granted on 10 March 1977 by the Minister for Local Government to the then owner, Mr Patrick Thornton, on his appeal against the refusal, on 26 April 1976, by the planning authority (Dublin County Council) of full planning permission. One of the grounds for that refusal was that the site was in an area zoned for the further development of agriculture so as to preserve a green belt. 10. On 15 September 1980 Dublin County Council refused the detailed planning approval (see paragraph 29 below) for which Pine Valley had applied on 16 July 1980 in reliance on the outline permission. Pine Valley thereupon sought a conditional order of mandamus, directing the council to grant such approval; such an order was granted on 8 December 1980 and was made absolute by the High Court by a decision of 27 May 1981. 11. On 17 July 1981 Pine Valley sold the land to Healy Holdings for IR £550,000. B. The first Pine Valley case 12. On 5 February 1982, on appeal by Dublin County Council against the High Court ’ s decision, the Supreme Court held that the grant of outline planning permission had been ultra vires and was therefore a nullity. It found that the relevant statutory provision (section 26 of the Local Government (Planning and Development) Act 1963) did not empower the Minister for Local Government to make, on an appeal against a refusal by a planning authority, a decision which - as in the present case - contravened the development plan (see paragraph 9 above). 13. As a result of this decision the land could not be developed and its value was therefore substantially reduced. In June 1988 it was sold in the open market by the receiver of Healy Holdings for IR £50,000. C. The Local Government (Planning and Development) Act 1982 14. With a view to validating planning permissions and approvals the validity of which came into question as a result of the Supreme Court ’ s decision, the Local Government (Planning and Development) Act 1982 ("the 1982 Act") was enacted. It entered into force on 28 July 1982. 15. Section 6 of the 1982 Act provided as follows: "(1) A permission or approval granted on appeal ... prior to the 15th day of March, 1977, shall not be, and shall not be regarded as ever having been, invalid by reason only of the fact that the development concerned contravened, or would contravene, materially the development plan relating to the area of the planning authority to whose decision the appeal related. (2) If, because of any or all of its provisions, subsection (1) of this section would, but for this subsection, conflict with a constitutional right of any person, the provisions of that subsection shall be subject to such limitation as is necessary to secure that they do not so conflict but shall be otherwise of full force and effect." The date of 15 March 1977 was that of the establishment of the Planning Board (An Bord Pleanála ), to which body the appeal functions formerly entrusted to the Minister for Local Government had been transferred by the Local Government (Planning and Development) Act 1976. 16. The 1982 Act also dealt, in section 2, with the duration of the validity of certain permissions. Its effect was that one granted on 10 March 1977, as was the outline permission in the present case, expired on 10 March 1984. Under section 4, however, the planning authority could extend the period of validity of a permission provided, inter alia, that substantial works had already been carried out before it expired. 17. In the course of the debate on the 1982 Act before Seanad Éireann (Upper House of Parliament) the Minister of State at the Department of the Environment was asked the following question: "I understand that certain planning permissions were declared to be null and void by the Supreme Court. I agree the law has to be put right, but who is going to declare under subsection (2) whether a person ’ s constitutional rights are going to be interfered with? Does it mean another trip to the Supreme Court? What is the position? The Minister might tell us exactly what is in his mind." The Minister replied: "It would be agreed by the court. Subsection (2) has been included by the parliamentary draftsman, with the agreement of the Attorney General, so as to preserve the rights of parties to any proceedings now before the courts and to assure that no court is deprived of jurisdiction regarding an issue raised in such proceedings. This subsection is also designed to meet the case of any unconstitutional interference with a property right." (Official report of the Parliamentary Debates of Seanad Éireann for 22 July 1982, columns 1411-1435) 18. On 4 August 1982 Pine Valley applied to Dublin County Council for planning approval (see paragraph 29 below) on the basis of the outline permission granted in 1977; its application contained no reference to the 1982 Act. Approval was refused on 10 December on the ground that the Supreme Court had held in the first Pine Valley case that the outline permission was not valid and on four other grounds related to technical planning matters. No appeal was made to the Planning Board against this decision nor was it the subject of any other legal challenge; the applicants claimed that an appeal would have been to no avail since the Board had to confine itself to matters of proper planning and development (see paragraph 30 below) and could not give an authoritative interpretation of section 6 of the 1982 Act. 19. A few months after the Council ’ s decision, the applicants set in motion the second Pine Valley case (see paragraphs 20-27 below). Whilst it was pending, the following steps were taken on their behalf. First, on 27 April 1983 their architect wrote to the Planning Board asserting that Pine Valley was excluded from the benefit of section 6(1) of the 1982 Act and asking that the applicants ’ position be reconsidered in the light of "the injustice of the situation". The Board replied on 2 May, regretting that it could not be of assistance. Secondly, on 7 September 1984 the applicants ’ solicitors wrote to the Board, requesting it to deal with the outstanding appeal which had originally been dealt with by the Minister for Local Government in March 1977 (see paragraph 9 above) in a manner subsequently found invalid. The Board replied on 23 November that the appeal in question "does not remain to be determined by the Board". The solicitors asked the Board to indicate the reasons for this decision, but its reply of 8 January 1985 was confined to saying that the legal advice it had received was confidential and that it could not assist any further than by stating its position. D. The second Pine Valley case 1. Decision of the High Court 20. On 11 March 1983 Pine Valley brought proceedings - in which Healy Holdings and Mr Healy were joined as plaintiffs on 25 January 1985 - against the Minister for the Environment (as the successor to the Minister for Local Government), seeking damages for breach of statutory duty, for negligent misrepresentation and for negligence. The plaintiffs later amended their pleadings to include a claim for damages against the State for breach of their constitutional rights of property. With the consent of the parties the High Court directed on 28 January 1985 that the question whether the plaintiffs had a cause of action be tried as a preliminary issue and that the following points of law fell to be determined in this connection: (a) whether an action in damages for ( i ) breach of statutory duty; (ii) negligence; and/or (iii) negligent misrepresentation lay at the suit of the plaintiffs against the Minister for the Environment for granting on legal advice the outline planning permission to Mr Thornton; (b) whether in the circumstances pleaded the State ( i ) had failed to vindicate the property rights of the plaintiffs and, if so, whether an action for damages lay against it; (ii) had in its laws respected and as far as practicable by its laws defended and vindicated the property rights of the plaintiffs and, if it had not, whether an action for damages lay against it. On 28 June 1985 the High Court held that no cause of action lay, whereupon the plaintiffs appealed to the Supreme Court. On 22 July they entered into an agreement amongst themselves in which Pine Valley and Healy Holdings assigned to Mr Healy, on his undertaking to pay the costs, their entire interest in the proceedings and acknowledged that any benefit resulting therefrom would accrue to him free of any claim by them. 2. Decision of the Supreme Court 21. On 30 July 1986 the Supreme Court unanimously dismissed the appeal ([1987] Irish Law Reports Monthly, pp. 753-768). 22. In rejecting the claim for damages based on breach of statutory duty, Mr Justice Finlay CJ (with whose judgment Mr Justice Griffin agreed and Mr Justice Hederman concurred) found that the Minister ’ s decision to grant outline planning permission contravening the development plan did not fall into any of the categories of ultra vires decisions that would found an action for damages; in particular, there was no evidence that he had been aware that he did not possess the power he was purporting to exercise. 23. Mr Justice Finlay CJ based his dismissal of the claims for alleged negligence and negligent misrepresentation essentially on the ground that, when granting the permission, the Minister had acted bona fide and in accordance with the advice he had obtained from his department ’ s legal advisers. 24. As regards the claim for damages for breach of the plaintiffs ’ constitutional rights of property, Mr Justice Finlay CJ stated: "With regard to this submission the first enquiry must, it seems to me, be as to whether there has been an unjust attack on the plaintiffs ’ property rights or whether an injustice has been done to them. What the Minister was doing in making his decision in 1977 to grant outline planning permission to the then owner of these lands was not intended as any form of delimitation or invasion of the rights of the owner of those lands but was rather intended as an enlargement and enhancement of those rights. The purchase of land for development purposes is manifestly a major example of a speculative or risky commercial enterprise. Changes in market values or economic forces, changes in decisions of planning authorities and the rescission of them, and many other factors, indeed, may make the land more or less valuable in the hands of its purchasers. I am prepared to accept that prima facie in this instance the fact that the Minister ’ s decision was ultimately found by this Court to have been a nullity, probably contributed towards a diminution in the value of the land in the plaintiffs ’ hands. That fact, itself, however, does not, in my view, necessarily mean that an injustice was done to the plaintiffs and I am certain that that does not constitute an unjust attack on the plaintiffs ’ property rights. The obligation of the State in Article 40.3.1 o and Article 40.3.2 o [of the Constitution of Ireland] is in the first instance, as far as practicable by its laws to defend and vindicate the personal rights of the citizen and, in the second instance, to protect as best it may from unjust attack, and in the case of injustice done, vindicate the property rights of every citizen. In its decision in the case of Moynihan v. Greensmyth [1977] Irish Reports 55, this Court in its judgment delivered by O ’ Higgins CJ, stated as follows: ‘ It is noted that the guarantee of protection given by Article 40.3.2 o of the Constitution is qualified by the words "as best may be". This implies circumstances in which the State may have to balance its protection of the right as against other obligations arising from regard for the common good. ’ I am satisfied that it would be reasonable to regard as a requirement of the common good an immunity to persons in whom are vested statutory powers of decision from claims for compensation where they act without negligence and bona fide. Such an immunity would contribute to the efficient and decisive exercise of such statutory powers and would, it seems to me, tend to avoid indecisiveness and delay, which might otherwise be involved. I am, therefore, satisfied that there cannot be, on the facts of this case, any question of there being a clearcut obligation imposed on the State to provide compensation for the plaintiffs in the circumstances which have arisen. I am, therefore, satisfied that the submissions made with regard to a claim for damages for breach of constitutional rights must also fail. It is not necessary for me to decide, and I express no opinion, on the question as to whether an action does lie for failure on the part of the Oireachtas to legislate in protection of personal rights, as distinct from the action to set aside or invalidate legislation which fails adequately to protect or vindicate them." 25. In their judgments some members of the Supreme Court addressed the question whether the retrospective validation of planning permissions effected by section 6 of the 1982 Act (see paragraphs 14-15 above) covered the outline permission granted to Mr Thornton in 1977. This question was not expressly mentioned in the agreed points of law to be determined (see paragraph 20 above), nor did the pleadings in the case make it a contentious issue: the plaintiffs ’ plea in their statement of claim that they could not "by operation of law avail of the retrospective validity afforded by the provisions" of that section was not denied by the State in its defence. Mr Justice Finlay CJ stated that the 1982 Act contained a "saver for cases involving constitutional rights of other persons, which would appear to exclude the plaintiffs from the benefit of such retrospective validation". Mr Justice Henchy (with whom Mr Justice Griffin agreed) said that section 6 of the 1982 Act effected a retrospective validation, save where it "would conflict with a constitutional right of any person. This meant that Pine Valley were excluded from the benefit of the section, for they had exercised their constitutional right to litigate the validity of the planning permission in the Courts". Mr Justice Lardner stated: "No doubt it was apprehended that s. 6(1) of the [1982 Act] might operate to reverse retrospectively this Court ’ s decision [in the first Pine Valley case] and that this might constitute an unwarrantable interference by the legislature in a decision of the courts. It seems probable that it was in these cicumstances that s. 6(2) was enacted with a view to avoiding such interference. And this subsection has been accepted by counsel for both sides in the present case as excluding the appellants from the benefit of s. 6(1)." 26. Certain views were also expressed as to the effects of the plaintiffs ’ being excluded from the benefit of the retrospective validation. Mr Justice Henchy said: "[The] exclusion has been attacked by counsel for Pine Valley as being unfairly discriminatory as far as they are concerned, but in my view, while a discrimination has resulted, the primary and overriding purpose of the section was to avoid an unconstitutional invasion of the judicial domain by attempting to give validity to any planning permission which the Courts may have held to be lacking in validity. It would follow that no injustice has been done to Pine Valley by s. 6 of the 1982 Act." Mr Justice Lardner stated: "... the appellants contend that to exclude them from the benefit of s. 6(1) constitutes (a) an unjust attack on their property rights or an injustice done which affects their property rights and (b) discriminates unfairly as between them and other persons who had received permissions or approvals of the Minister on appeal under Part IV of the 1963 Act and who were given the benefit of s. 6(1). In regard to the first contention it seems to me that s. 6(2) was included by the Oireachtas for the purpose of respecting and not interfering with the determination by the courts of the justiciable controversy which constituted the proceedings in [the first Pine Valley case] and of respecting the constitutional rights of the parties, both plaintiffs and defendants in that action, to have their controversy determined by the courts rather than by the Oireachtas. It may be that there is to some extent a conflict here between the right of the parties to have their controversy judicially determined by the courts and the present appellants ’ property interest. That fact in itself, however, does not in my view, necessarily mean that an injustice was done to the appellants and I am satisfied that it does not constitute an unjust attack on the appellants ’ property rights or an unlawful discrimination against them. Those persons (such as the appellants) who were excluded from the benefits of s. 6(1) by s. 6(2) and the other recipients of planning approval or permission on appeal from the Minister who benefited from s. 6(1) and fall outside the ambit of s. 6(2) constitute two groups who were and are differently situated and a valid and substantial reason for the discrimination which has been made by these sections has always existed." 27. Mr Justice Henchy added that when the outline planning permission in respect of the land was declared invalid, there would have been a breach of the vendor ’ s covenant for title, which would have given Pine Valley a cause of action for damages against him. Alternatively, it could have recovered from him, in an action for unjust enrichment, so much of the purchase price as was attributable to the permission. Since Pine Valley had not shown that its loss could not be recovered in that way, it had failed to prove that an injustice had been done to it for the purposes of Article 40.3.2 o of the Constitution. | This case concerned the withdrawal of permission to build on land purchased for construction. The applicants were a couple of companies which had as their principal business the purchase and development of land and the managing director of the second company and its sole beneficial shareholder. They complained in particular about the Irish Supreme Court’s decision holding the outline planning permission for industrial warehouse and office development on the site, which had been granted to the then owner, to be invalid. |
979 | Inhuman and / or degrading conditions of detention | I. THE CIRCUMSTANCES OF THE CASE 7. The applicants were born in 1970, 1966, 1976 and 1972 respectively. Mr Rezmiveş, Mr Moşmonea and Mr Gazsi are currently detained in Timişoara, Pelendava and Baia Mare Prisons respectively. Mr Mavroian, who had been detained in Focşani Prison, was released on 13 January 2015. A. The first applicant ’ s detention 8. On 5 April 2011 the first applicant was admitted to Gherla Prison. He remained there until 12 March 2012, when he was transferred to Aiud Prison. On 13 April 2012 he was transferred to Oradea Prison, where he stayed until 20 December 2012, before being moved to Timişoara Prison on 5 August 2013. 9. The first applicant complained about the conditions of detention in Gherla, Aiud and Oradea Prisons. In particular, he complained of overcrowding ( submitting that there was between 1. 60 sq. m and 2. 22 sq. m of living space per prisoner ), the lack of natural light, the short duration of daily exercise and the lack of recreational activities. ... B. The second applicant ’ s detention 10. On 1 3 February 2008 the second applicant was placed in pre-trial detention in Craiova Prison. Following his conviction, he served his sentence there until 17 May 2012, when he was transferred to Târgu-Jiu Prison. On 11 July 2012 he was transferred to Pelendava Prison. 10. The second applicant complained about the detention conditions in all three prisons. ... C. The third applicant ’ s detention 16. On 1 5 December 2009 the third applicant was admitted to Rahova Prison, where he stayed for several months before being transferred successively to Tulcea (2010), Iași (2010- 14) and Vaslui (2011- 13) Prisons. 17. The third applicant complained about the conditions of detention in Rahova Prison, referring in particular to overcrowding, lack of ventilation in cells, mould on the walls, poor-quality food and the presence of bedbugs. ... D. The fourth applicant ’ s detention 23. The fourth applicant was held in the Baia Mare police detention facility from 26 March to 25 May 2012 before being transferred to Gherla Prison. 24. In his application form the fourth applicant complained of poor hygiene conditions, the lack of a toilet, running water, natural light and adequate ventilation, the presence of rats and the insufficient access to showers at the Baia Mare police detention facility. In relation to his detention in Gherla Prison, he complained of overcrowding, lack of ventilation in cells, insufficient and poor-quality food served in rusty containers, and the presence of only one bathroom between twenty-seven detainees, which had two toilets and no hot water and could not be cleaned more than once a month. ... I. Basic principles 1. Deprivation of liberty should be regarded as a sanction or measure of last resort and should therefore be provided for only where the seriousness of the offence would make any other sanction or measure clearly inadequate. 2. The extension of the prison estate should rather be an exceptional measure, as it is generally unlikely to offer a lasting solution to the problem of overcrowding. Countries whose prison capacity may be sufficient in overall terms but poorly adapted to local needs should try to achieve a more rational distribution of prison capacity. 3. Provision should be made for an appropriate array of community sanctions and measures, possibly graded in terms of relative severity; prosecutors and judges should be prompted to use them as widely as possible. 4. Member states should consider the possibility of decriminalising certain types of offence or reclassifying them so that they do not attract penalties entailing the deprivation of liberty. 5. In order to devise a coherent strategy against prison overcrowding and prison population inflation a detailed analysis of the main contributing factors should be carried out, addressing in particular such matters as the types of offence which carry long prison sentences, priorities in crime control, public attitudes and concerns and existing sentencing practices. ... III. Measures relating to the pre-trial stage Avoiding criminal proceedings – Reducing recourse to pre-trial detention 10. Appropriate measures should be taken with a view to fully implementing the principles laid down in Recommendation No R (87) 18 concerning the simplification of criminal justice; this would involve in particular that member states, while taking into account their own constitutional principles or legal tradition, resort to the principle of discretionary prosecution (or measures having the same purpose) and make use of simplified procedures and out-of-court settlements as alternatives to prosecution in suitable cases, in order to avoid full criminal proceedings. 11. The application of pre-trial detention and its length should be reduced to the minimum compatible with the interests of justice. To this effect, member states should ensure that their law and practice are in conformity with the relevant provisions of the European Convention on Human Rights and the case-law of its control organs, and be guided by the principles set out in Recommendation No. R (80) 11 concerning custody pending trial, in particular as regards the grounds on which pre-trial detention can be ordered. 12. The widest possible use should be made of alternatives to pre-trial detention, such as the requirement of the suspected offender to reside at a specified address, a restriction on leaving or entering a specified place without authorisation, the provision of bail or supervision and assistance by an agency specified by the judicial authority. In this connection attention should be paid to the possibilities for supervising a requirement to remain in a specified place through electronic surveillance devices. 13. In order to assist the efficient and humane use of pre-trial detention, adequate financial and human resources should be made available and appropriate procedural means and managerial techniques be developed, as necessary. ... V. Measures relating to the post-trial stage The implementation of community sanctions and measures – The enforcement of custodial sentences 22. In order to make community sanctions and measures credible alternatives to short terms of imprisonment, their effective implementation should be ensured, in particular through: - the provision of the infrastructure for the execution and monitoring of such community sanctions, not least in order to give judges and prosecutors confidence in their effectiveness; and - the development and use of reliable risk-prediction and risk-assessment techniques as well as supervision strategies, with a view to identifying the offender ’ s risk to relapse and to ensuring public protection and safety. 23. The development of measures should be promoted which reduce the actual length of the sentence served, by giving preference to individualised measures, such as early conditional release (parole), over collective measures for the management of prison overcrowding (amnesties, collective pardons). 24. Parole should be regarded as one of the most effective and constructive measures, which not only reduces the length of imprisonment but also contributes substantially to a planned return of the offender to the community. 25. In order to promote and expand the use of parole, best conditions for offender support, assistance and supervision in the community have to be created, not least with a view to prompting the competent judicial or administrative authorities to consider this measure as a valuable and responsible option. 26. Effective programmes for treatment during detention and for supervision and treatment after release should be devised and implemented so as to facilitate the resettlement of offenders, to reduce recidivism, to provide public safety and protection and to give judges and prosecutors the confidence that measures aimed at reducing the actual length of the sentence to be served and the community sanctions and measures are constructive and responsible options. ” 43. The second part of Recommendation Rec(2006)2 of the Committee of Ministers to member States on the European Prison Rules (adopted on 11 January 2006 at the 952nd meeting of the Ministers ’ Deputies), is devoted to conditions of detention. The relevant parts of the Recommendation read as follows: “ 18.1. The accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy, and meet the requirements of health and hygiene, due regard being paid to climatic conditions and especially to floor space, cubic content of air, lighting, heating and ventilation. 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; and c. there shall be an alarm system that enables prisoners to contact the staff without delay. 18.3. Specific minimum requirements in respect of the matters referred to in paragraphs 1 and 2 shall be set in national law. 18.4. National law shall provide mechanisms for ensuring that these minimum requirements are not breached by the overcrowding of prisons. 18.5. Prisoners shall normally be accommodated during the night in individual cells except where it is preferable for them to share sleeping accommodation. ” 44. On 7 May 2012, in a memorandum which was declassified at the 1144 th meeting of the Ministers ’ Deputies ( June 2012), the Committee of Ministers evaluated the general measures adopted for the execution of judgments in ninety-three Romanian cases relating mainly to overcrowding and material conditions of detention in prisons and police detention facilities ( the Bragadireanu group of cases (no. 22088/04)). The situation in police detention facilities was described as giving rise to “serious concerns” because, in addition to overcrowding, the cells were located in police station basements, there was inadequate ventilation and access to natural light and the opportunities for out-of-cell activities were very limited. The Committee of Ministers stated that significant additional measures were still required to ensure that police detention facilities afforded conditions that were fully compatible with the requirements deriving from Article 3 of the Convention. The authorities were encouraged to transfer everyone detained on remand to prisons. The overcrowding in the vast majority of Romanian prisons was said to give rise to “serious concerns”. ... 46. On 1 2 February 2015 the Committee of Ministers published a memorandum [3] assessing the general measures taken or envisaged in the above-mentioned cases to resolve the issues of overcrowding and poor conditions of detention. Regarding police detention facilities, the memorandum concluded that, as well as being overcrowded, a number of such facilities were structurally unsuitable for longer-term detention. In addition to the severe overcrowding and the shortage of individual beds, the cells were located in police station basements and there was inadequate ventilation and access to natural light. The Romanian authorities were encouraged to provide appropriate living conditions in the cells, to review the system of pre-trial detention on police premises and to ensure that remand prisoners were not held in such facilities for extended periods and were transferred promptly to prisons. The measures introduced in the new Code of Criminal Procedure to reduce prison overcrowding in particular (house arrest, judicial supervision, suspension of sentence and discharge) did not appear likely to contribute to a significant reduction in the prison population. According to the conclusions of the memorandum, Romanian prisons were still severely overcrowded and the material conditions were precarious. The recommendations issued to the Romanian authorities included diversifying the range of alternative measures to imprisonment, relaxing the conditions of access to conditional release, ensuring the proper functioning of the probation service and continuing with plans to modernise the prison estate. 47. With regard to the remedies available in respect of complaints concerning overcrowding and poor material conditions, in the same memorandum the Committee of Ministers assessed preventive remedies ( Law no. 254/2013) and found that they did not allow the domestic courts to carry out a comprehensive review of such complaints and to order corrective measures where the minimum national standard was incompatible with the requirements deriving from the Court ’ s case-law. Doubts were also expressed as to the effectiveness of decisions by post-sentencing judges, especially in a context characterised by systemic overcrowding. As regards compensatory remedies, the Committee of Ministers observed that the examples provided by the authorities in relation to ordinary liability in tort did not prove with the requisite degree of certainty that a compensatory remedy existed in this field. The Committee of Ministers recommended that additional measures be taken in order to fully respond to the indications which the Court had given the Romanian authorities in the Iacov Stanciu v. Romania judgment ( no. 35972/05, 24 July 2012) as regards the setting up of an adequate and effective system of remedies. B. European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) ... 49. In the Seventh General Report on the CPT ’ s activities (CPT/Inf (97) 10), published on 2 2 August 1997, the CPT referred, among other things, to situations of overcrowding : “ 13. ... An overcrowded prison entails cramped and unhygienic accommodation; a constant lack of privacy (even when performing such basic tasks as using a sanitary facility); reduced out-of-cell activities, due to demand outstripping the staff and facilities available; overburdened health-care services; increased tension and hence more violence between prisoners and between prisoners and staff. This list is far from exhaustive. The CPT has been led to conclude on more than one occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention. 14. To address the problem of overcrowding, some countries have taken the route of increasing the number of prison places. For its part, the CPT is far from convinced that providing additional accommodation will alone offer a lasting solution. Indeed, a number of European States have embarked on extensive programmes of prison building, only to find their prison populations rising in tandem with the increased capacity acquired by their prison estates. By contrast, the existence of policies to limit or modulate the number of persons being sent to prison has in certain States made an important contribution to maintaining the prison population at a manageable level. ... ” ... 51. The CPT visited various Romanian prisons and police detention facilities in 1995, 1999, 2001, 2002, 2003, 2004, 2006, 2009 and 2010. The reports published following these visits referred in general to significant overcrowding and poor hygiene conditions in the facilities visited. 52. In a report published on 2 4 November 2011 following its visit to Romania from 5 to 16 September 2010 the CPT gave a detailed overview of the situation encountered in the different police detention facilities it had visited. Most of the cells in those facilities were overcrowded and in a poor state of repair; access to natural light and ventilation was poor, and the artificial lighting was inadequate; the toilets were not fully partitioned off; and the detainees were not supplied with bodily hygiene products. In some of the facilities, detainees were given only one meal a day and the food was of poor quality. In other facilities, detainees were kept in their cells for twenty-three hours a day. In conclusion, the police detention facilities visited were found to be unsuitable long-term accommodation for persons deprived of their liberty. The part of the report containing recommendations reads as follows : “ The CPT recommends, once again, that the Romanian authorities take the necessary measures to guarantee that in police detention facilities : – each detainee has at least 4 sq. m of living space in multi-occupancy cells; – each detainee has a clean mattress and blankets; – there is adequate natural light, artificial lighting and ventilation in the cells; any unnecessary fittings on windows must be removed; – toilets built into cells are partitioned off; – the cells and sanitary facilities are kept in a decent state of repair and cleanliness; – detainees have basic hygiene products; – satisfactory food ( in terms of quality and quantity ) is served to detainees, in accordance with the European Prison Rules; – anyone detained for more than twenty-four hours has at least one hour ’ s outdoor exercise every day. The CPT also recommends that the Romanian authorities continue their efforts to offer some form of activity, besides a daily walk, to anyone held for more than a few days in police detention facilities. ... ” 53. The same report contains observations on the situation at one particular prison. According to the report ’ s findings, some of the cells at that prison were overcrowded ( with less than 3 sq. m of living space per prisoner ), with dirty and foul-smelling sanitary facilities. There was no access to hot water. The CPT issued the following recommendations: “ ... 62. The CPT recommends that the Romanian authorities take steps at Poarta Albă Prison to : – reduce occupancy rates in the cells in blocks II and IV, the aim being to offer a minimum of 4 sq. m of living space per prisoner as laid down in the rules in force; – repair/renovate the sanitary facilities in block II ( in the cells ) and block IV ( in the cells and communal showers ); – allow prisoners in block IV to have a warm shower at least once a week; consideration should be given in this regard to Rule 1 9.4 of the European Prison Rules; – undertake a full renovation of block IV as soon as possible; – review the quality and quantity of meals provided to prisoners, ensuring that minimum daily intake requirements are strictly complied with and regular inspections of supplies, in particular meat, are carried out. ... ” 54. From 5 to 17 June 2014 a CPT delegation visited a number of police detention facilities ( Bucharest City police detention facilities nos. 1, 10, 11 and 12, Afumaţi and Cernica police stations, and Arad Police Inspectorate and Bihor County Police Inspectorate detention facilities ) and four prisons (Arad, Oradea, Târgşor and Bucharest-Rahova). The report (CPT/Inf (2015) 31) produced following the visit was published on 2 8 September 2015. With regard to the police detention facilities, the CPT observed that many detainees were still being held there for prolonged periods, even though the facilities were not suitable for such lengthy stays. The CPT recommended that the Romanian authorities ensure that detainees were no longer held for lengthy periods in police facilities and were instead detained in prisons. The conditions in most of the police detention facilities visited, with two exceptions (Oradea and Arad), were similar to those observed in 2010 ( overcrowding, dilapidation, lack of hygiene, and insufficient natural light and ventilation). Turning to the detention conditions in the prisons, the CPT noted that overcrowding remained a significant problem and recommended that the Romanian authorities redouble their efforts to develop a penal policy placing emphasis on non-custodial measures. The material conditions at Arad Prison – which had been renovated between 1998 and 2010 – were generally satisfactory, apart from the dilapidated state of certain cells, decrepit walls, damage to beds and wardrobes and problems of vermin infestation. At Oradea Prison, built in the nineteenth century, there were run-down buildings, with overcrowded cells where the walls and ceilings were exposed to water seepage, and in some cases with no artificial lighting or access to natural light, and furniture and mattresses in a poor condition. At Târgşor Prison there were also overcrowded and poorly ventilated cells, with triple bunkbeds, limited access to natural light and seriously inadequate artificial lighting. As far as sanitary facilities and hygiene were concerned, the CPT noted that the toilets and washbasins in several cells were dilapidated and that there were shower heads missing (Arad and Oradea); and that the toilets were unfit for use and detainees were not supplied with enough soap, detergent and sanitary towels (Târgşor). The CPT delegation had received a large number of complaints about the quantity and quality of food. Despite the efforts made at three prisons to offer prisoners work and/or social and educational activities, the vast majority of the prison population did not take part in such activities. The CPT issued the following recommendations in the light of its visit : “ A. Police detention facilities ... In the light of the above observations, the CPT urges the Romanian authorities to take the necessary measures to ensure that at police detention facilities : – detainees have at least 4 sq. m of living space in shared cells ( Bucharest central police detention facility and facilities nos. 10, 11 and 12); – cells have sufficient access to natural light and artificial lighting and ventilation ( Bucharest central police detention facility and facilities nos. 10, 11 and 12 and Arad detention facility ); any unnecessary fittings of grilles/bars on windows should be removed and the windows expanded ( Bucharest police detention facilities nos. 10, 11 and 12 and central facility ); – all detainees have a clean mattress and bedding ( Bucharest police detention facilities nos. 10, 11 and 12 and central facility and Arad detention facility ); – the sanitary facilities in the cells at Bucharest central police detention facility and facilities nos. 10, 11, 12 and Oradea detention facility are fully partitioned off ( up to the ceiling ); – detainees in Arad police detention facility are immediately provided with access to suitable toilets, including at night; the use of buckets and bottles should be abandoned; – the cells and sanitary facilities are regularly maintained and kept clean. With regard to meals, reference is made to the observations and recommendations set out in paragraphs 62 and 64. Furthermore, the CPT recommends that improvements be made to the exercise yards at the detention facilities visited, taking into account the observations made in paragraph 40. The CPT also recommends that the authorities continue their efforts to offer some form of activity, besides a daily walk, to anyone held for more than a few days in police detention facilities. B. Prisons ... 58. The CPT recommends that the following measures be taken in the institutions visited in the light of the observations set out in paragraphs 54- 5 7 : – review cell occupancy rates in order to guarantee a minimum of 4 sq. m of living space per detainee in shared cells, not including sanitary facilities (Oradea and Târgşor Prisons ); – carry out the necessary renovation and repair work in wings E3 and E4 at Oradea Prison, and ensure that any damaged furniture and mattresses are replaced; – guarantee that all detainees in wing E3 at Oradea Prison and in the darker closed-regime cells at Târgşor Prison have sufficient access to natural light and adequate ventilation in the cells during the daytime; access to artificial lighting should also be improved in the closed-regime cells at Târgşor Prison; solutions should be found to avoid keeping the light on all night, for example by installing night lights; – carry out regular disinfestation of the buildings at Arad Prison. In addition, the cells at the prisons visited should be equipped with signalling systems. ... 61. The CPT recommends that the Romanian authorities take the following measures in the light of the observations set out in paragraphs 59 and 60: – repair and renovate the sanitary facilities in the relevant wings of Arad, Oradea and Târgşor Prisons; at Oradea Prison, the walls and ceilings damaged by water seepage must also be repaired; – provide detainees with sufficient personal hygiene products and detergent to clean their cells. ... 64. The CPT recommends that the Romanian authorities take steps to guarantee that the quality and quantity of the food provided to detainees in the prisons visited, and in all other prisons in Romania, comply with the minimum daily intake requirements for protein and vitamins. The CPT calls on the authorities to ensure that the calorie levels currently under discussion comply with the minimum daily intake requirements, and wishes to receive a copy of the new standards in due course. The CPT also recommends that the kitchens be regularly inspected, with constant attention being paid in particular to compliance with hygiene standards. In addition, the CPT wishes to receive confirmation that the faulty freezer cabinet in the kitchen at Oradea Prison has been replaced. 4. Activities ... The CPT recommends that the Romanian authorities redouble their efforts to develop programmes of activities for convicted prisoners, including those under the closed regime, and remand prisoners, especially in Oradea and Târgşor Prisons. The aim should be to allow both categories of prisoners to spend a reasonable portion of the day ( eight hours or more) outside their cells, carrying out a variety of motivating activities. To that end, there should be a sufficient number of appropriate staff, in particular psychologists, supervisors and social workers. The CPT recommends that the teams of psychologists, supervisors and social workers at the three prisons visited be strengthened, first of all by filling any vacant posts in those prisons without delay. ” ... C. European Committee on Crime Problems (CDPC) 57. On 3 0 June 2016 the CDPC published the White Paper on Prison Overcrowding (PC-CP (2015) 6 rev 7), approved on 2 8 September 2016 by the Committee of Ministers at its 1266th meeting. The White Paper highlights various aspects that national authorities are encouraged to consider when devising their long-term strategies and specific actions to tackle prison overcrowding. The relevant parts of the document read as follows: “ IV. Root causes of overuse of deprivation of liberty and of prison overcrowding ... d. Limited use of community sanctions and measures 71. Recommendation No. R(92)16 on the European Rules on community sanctions and measures (CSM) sets a number of standards and principles for their use and by doing so incites the member states to introduce a reliable system in order to motivate courts to make more use of CSM instead of imprisonment. CSM can maintain the right balance between protection of society, reparation of the harm done to victims and dealing with the needs of social adjustment of the offenders. 72. Such alternatives can fully or partially replace prison sentences and may include for example treatment orders, fines, confiscation of assets, suspended sentences linked to the fulfilment of certain conditions by the offender, community service/sanctions and many other sanctions and measures, often specially adapted to the particular offender and the circumstances of the crime. What they all have in common is that the crime committed will indeed be met with an adapted and therefore efficient sanction/reaction which can also help prevent future offences. Economic sanctions together with CSM or as standalone alternatives to imprisonment seem to be quite efficient and have often more effects on offenders than the mere use of prison. ... 75. Community service is an example in this respect as it helps maintaining offenders in the outside social environment, developing their social and employment skills and working towards their reintegration into society. The role of the local communities in relation to this is very important as they should provide for such possibilities for community service. They thus become a partner in dealing with crime in a manner which steps out of the traditional criminal justice methods and on the other hand become facilitators in social integration of offenders which is a basic indicator of inclusive communities. ... V. How to address prison overcrowding a. Deprivation of liberty as a measure of last resort 84. As mentioned earlier, this principle is to be found in the relevant Committee of Ministers recommendations. These texts invite the member states to use deprivation of liberty only when the seriousness of the offence combined with consideration of the individual circumstances of the case would make any other sanction or measure clearly inadequate. If this view is largely accepted in reality its interpretation differs which may lead to divergent transpositions into concrete action and rules in the different criminal justice systems. ... 85. In many of its judgements the Court has reiterated that, in view of both the presumption of innocence and the presumption in favour of liberty, remand in custody must be the exception rather than the norm and should be a measure of last resort. In Torreggiani v. Italy the Court reminds of the relevant Committee of Ministers recommendations to be taken into consideration when devising penal policies and reorganising the penitentiary system and invites judges and prosecutors to make more use of alternatives to custody and make lesser use of detention in order, among others, to reduce the growth of prison population. 86. In order to avoid the excessive use of remand in custody and imprisonment courts should apply the principle of using deprivation of liberty as a measure of last resort. Unfortunately only too often deprivation of liberty is a measure of first resort instead of being seen and accepted as an exceptional method of execution of a penal sanction. Courts should not deprive a person of his/her liberty simply because it is provided by law and is carried out in a lawful manner, but also because it is reasonable and necessary in all circumstances (evaluated on a case-by-case basis). This requires the application of the principle of proportionality and the careful assessment of the risk of reoffending and of the risk of causing harm to the society. 87. The length of pre-trial detention should be fixed by law and/or be reviewed at regular intervals. The length of pre-trial detention should in no case exceed the length of the sanction provided for the offence alleged to have been committed. In addition to the length of pre-trial detention being fixed by law, the need for continuation of detention on remand of any suspect or accused should be reviewed at regular intervals as with time the pressing necessity to remand someone in custody may decrease or even disappear. 88. Remand detention can last many months, sometimes years because a person may be considered to be a remand detainee until the last instance court has delivered its judgement. It seems therefore advisable to consider detaining such persons convicted by first instance court together with sentenced prisoners after the judgement of the first instance court is delivered in order to avoid situations of overcrowding in remand facilities and to start preparing the persons for rehabilitation in view of their future release. ... 100. Long prison sentences or prison sentences for life concern usually a minority of the prison population. Nevertheless with time their number rises and more prisoners accumulate who tend to stay locked up for decades or sometimes for life. In accordance with the case-law of the European Court of Human Rights35 any such prisoners should have the right at regular intervals to request early release and this request should be properly considered and reasons given for decisions. ... b. Revision of penal law, decriminalisation and alternatives to penal proceedings ... 112. It can be argued that only acts and behaviour that are seriously harmful or causing a risk of harm or real danger to other persons should be criminalised and should entail prison sentences. The need for proportionality between the real harmfulness of the offence committed and the real risk posed by the offender and the degree of punishment is also a very important point to be considered. 113. On the other hand it should be fully recognised that crimes committed by dangerous offenders merit special attention and often bring about the use of prolonged deprivation of liberty to protect society and potential victims, which must be seen as fully justified. The definition of dangerousness may vary, but the definition from the Committee of Ministers Recommendation CM/Rec 2014 (3) on dangerous offenders may be useful as a starting point in this respect. ‘ A dangerous offender is a person who has been convicted of a very serious sexual or very serious violent crime against persons and who presents a high likelihood of re offending with further very serious sexual or very serious violent crimes against persons. ’ Violence may be defined as the intentional use of physical or psychological force. 114. So in total, general revisions of the criminal justice systems or at least revision of the types of crimes, of their dangerousness for society and of the sanctions contained in the criminal codes would be welcomed as this could offer an opportunity to study the coherence and ideas and values behind the penal policy of a given country and would simultaneously offer a chance to address prison overcrowding. This is a demanding but not impossible task and it can pave the way to more lasting reforms of criminal law bringing it up to date. 115. Therefore in order to obtain long lasting reduction of prison numbers it is important to consider legislative possibilities for: – decriminalising some offences (some countries have decriminalised drunken driving and substance abuse and have replaced these with administrative sanctions and treatment orders, others have decriminalised irregular immigration, others have replaced imprisonment of fine defaulters with community service); – individualising the sentences pronounced regarding their necessity and proportionality; – diverting from the criminal justice process (for example suspension of the case, suspension of the pronouncement of a sentence) by way of mediation, reparation and victim compensation schemes; – providing for sufficient alternatives to pre-trial detention; – suspending prison sentences with or without imposing certain conditions; – replacing prison sentences for some offences by sanctions and measures enforced in the community (community service, victim compensation schemes, electronic monitoring, etc.); – introducing sufficient types of community sanctions and measures and stopping automatic recall to prison in case of non-respect of the conditions imposed by the court sentence or treatment order; – providing more possibilities for early release schemes. ...” | In a Chamber judgment of 20 July 2021, |
653 | Opposition activists | 6. The applicant was born in 1943 and lives in Moscow. He has published books and articles under the name of Eduard Limonov. At the material time he was a founding member of the National Bolshevik Party and one of the leaders of Another Russia ( « Другая Россия » ), an umbrella coalition known for organising opposition rallies under the name of Dissenters ’ March (« Марш несогласных » ). 7. The facts of the case, as submitted by the parties, may be summarised as follows. Defamation proceedings against the applicant 8. On 4 April 2007 Radio Free Europe /Radio Liberty (RFE/RL) hosted a debate in the wake of the Moscow court ’ s decision upholding the Moscow Government ’ s refusal to authorise the Dissenters ’ March in 2006. The applicant took part in the debate and stated : “We certainly expected that the Tverskoy court [ in Moscow] would issue a negative decision. Moscow courts are controlled by [ the Moscow mayor] Luzhkov. You cannot expect a miracle ... Generally speaking, Moscow courts have never ruled against Luzhkov. Anyone in our position would have insisted on a lawful decision, knowing full well that unlawfulness was to be expected.” The transcript of the debate was published on the station ’ s web-site. 9. On 18 May 2007 the Moscow mayor lodged a defamation claim against the applicant and the RFE/RL station. He claimed that the sentence “Moscow courts are controlled by Luzhkov” was false and also damaging to his honour, dignity and the professional reputation, and sought 500,000 Russian roubles (RUB) in respect of non-pecuniary damage. 10. On 14 November 2007 the Babushkinsky District Court in Moscow granted the defamation claim in full. It heard counsel for the plaintiff and the defendants and took evidence from witnesses for the applicant who stated that they had had a personal experience of unsuccessful litigation against the Moscow Government in Moscow courts. The court found: “The defendant Savenko (Limonov) and his counsel did not produce any evidence showing the truth of the statement [that Moscow courts were controlled by Mayor Luzhkov]. The expert ... from the Vinogradov Russian Language Institute ... explained that for the average man – rather than for a specialist – the statement meant that courts were actually controlled by Mayor Luzhkov, that they were not independent and watched carefully for his reaction, that any application to the courts was meaningless because they would never find against Luzhkov. The expert ’ s position finds corroboration in the testimony of citizens who had spontaneously appeared in court and were listed as witnesses for the defendants. They actually believed that the courts in Moscow were controlled by the Moscow Government and by Mayor Luzhkov and they gave testimony to that effect ... [Mr Savenko (Limonov)] did not accept the claim ... and stated that the amount claimed was a significant one, that he did not have that kind of money because he was the father of a small child ... As regards compensation in respect of non-pecuniary damage, the court finds that the claim should be granted in full because the defendant Savenko (Limonov) did not produce his income statement, whereas the defendant RFE/RL submitted that it had an amount of RUB 58,656.35 in its current account ... ” The District Court ordered that the applicant and the radio station broadcast a rectification and publish it on the web-site, and pay RUB 500,000 each to the Moscow mayor. 11. On 7 February 2008 the Moscow City Court rejected the appeals by the applicant and the radio station and upheld the District Court ’ s judgment. It pointed out in particular that – “ ... in determining the amount of award in respect of non-pecuniary damage, the court had regard to the extent of liability of each defendant, the nature of the statement, the manner and extent of its dissemination, and the nature of moral suffering caused to the plaintiff. In particular, the court found that the disseminated information about the plaintiff undermined public confidence in the authorities ... that the information had been disseminated on the radio and in the internet ... and that the ... information unlawfully and undeservedly discredited the plaintiff in the eyes of a large audience as the head of the executive branch in the city of Moscow and caused him moral suffering which was immesurably greater than the ordinary ( нравственные страдания, которые несоизмеримо выше обычных ) ”. 12. On 25 April 2008 the court bailiffs opened enforcement proceedings against the applicant and asked him to pay the entire amount within three days. On 26 August 2008 the bailiffs searched his flat and removed his personal belongings, including a typewriter, chairs, desk lamps, mobile phones and books. 13. Unable to pay the award, the applicant asked the Babushkinskiy District Court to be allowed to pay by instalments. He submitted that he had no fixed income, except for his retirement pension, that he had not published any new books, and that he had to provide for his wife and two children. On 8 October 2008 the District Court refused his request on the grounds that the proposed amount of monthly instalments was negligible. In its view, payment by instalments would stretch the enforcement proceedings over more than forty years with the result that “the judgment would not actually be enforced”. On 20 November 2008 the Moscow City Court upheld the District Court ’ s decision on appeal. 14. On 15 December 2008 a bailiff issued a decision restricting the applicant ’ s right to leave Russia for a period of six months on the grounds that he had failed to pay the amount awarded to the mayor. On 15 October 2009 another bailiff issued a permanent restriction on the applicant ’ s right to leave Russia that would be valid until full payment of the award. Factual information submitted by the Government 15. The Court requested the Government to submit the information: (i) on all the defamation claims lodged by the Moscow mayor, their parties, outcomes and amounts awarded, and (ii) on any other defamation claims lodged by individuals, whether private persons, State officials or politicians, in which comparable amounts were awarded. 16. On the first point, the Government submitted information covering only the period from 1 January 2007 to April 2010. According to them, in that period the Moscow mayor had introduced sixteen defamation claims before the Moscow courts. The list produced by the Government only contained information in respect of fourteen such claims, all of which had been granted. In twelve cases the mayor was awarded compensation in respect of non-pecuniary damage in the amount ranging from RUB 30,000 to RUB 50,000, in two cases – judgments of 30 November 2009 and 28 April 2010 – the amount of compensation was RUB 500,000. 17. On the second point, the Government cited five judgments over a ten-year period, in which the amounts of compensation in respect of non ‑ pecuniary damage in defamation claims ranged from RUB 270,000 (judgment of 4 April 2007) to RUB 4,000,000 (judgment of 1 October 2002). Four of them were issued against publishing houses, and one judgment concerned a defamation claim lodged by the Agriculture and Food Minister of a Russian region against a private individual. | This case concerned defamation proceedings against the applicant instituted by a former mayor of Moscow, following his participation in a live radio debate on Radio Free Europe/Radio Liberty (RFE/RL), which focussed on a court decision upholding a refusal by the Moscow authorities to authorise a rally, known as the Dissenters’ March. The applicant, one of the leaders of a broad coalition of opposition groups involved in organising such rallies, had expressed the view that the Moscow courts were controlled by the mayor of Moscow. |
882 | Erasure or destruction of personal data | I. THE CIRCUMSTANCES OF THE CASE A. The applicant's conviction in 1948 7. The applicant, who was born in 1921, was a lawyer by profession. He is now retired and lives in Bârlad. 8. In 1946, after the communist regime had been established, the applicant, who was then a student, was refused permission by the prefect of the county of Vaslui to publish two pamphlets, “Student Soul” ( Suflet de student ) and “Protests” ( Proteste ), on the ground that they expressed anti ‑ government sentiments. 9. Dissatisfied with that refusal, the applicant wrote two letters to the prefect in which he protested against the abolition of freedom of expression by the new people's regime. As a result of these letters, the applicant was arrested on 7 July 1948. On 20 September 1948 the Vaslui People's Court convicted the applicant on a charge of insulting behaviour and sentenced him to one year's imprisonment. B. The proceedings brought under Legislative Decree no. 118/1990 10. In 1989, after the communist regime had been overthrown, the new government caused Legislative Decree no. 118/1990 to be passed, which granted certain rights to those who had been persecuted by the communist regime and who had not engaged in Fascist activities (see paragraph 30 below). 11. On 30 July 1990 the applicant brought proceedings in the Bârlad Court of First Instance against the Ministry of the Interior, the Ministry of Defence and the Vaslui County Employment Department, seeking to have the prison sentence that had been imposed in the 1948 judgment taken into account in the calculation of his length of service at work. He also sought payment of the corresponding retirement entitlements. 12. The court gave judgment on 11 January 1993. Relying on, among other things, the statements of witnesses called by the applicant (P.P. and G.D.), the 1948 judgment and depositions from the University of Iaşi, it noted that between 1946 and 1949 the applicant had been persecuted on political grounds. It consequently allowed his application and awarded him the compensation provided for in Legislative Decree no. 118/1990. 13. As part of its defence in those proceedings, the Ministry of the Interior submitted to the court a letter of 19 December 1990 that it had received from the Romanian Intelligence Service ( Serviciul Român de Informaţii – “the RIS”). The letter read as follows: “In reply to your letter of 11 December 1990, here are the results of our checks on Aurel Rotaru, who lives in Bârlad : (a) during his studies in the Faculty of Sciences at Iaşi University the aforementioned person was a member of the Christian Students' Association, a 'legionnaire' [ legionar ]-type [ [2] ] movement. (b) in 1946 he applied to the Vaslui censorship office for permission to publish two pamphlets entitled 'Student Soul' and 'Protests' but his request was turned down because of the anti-government sentiments expressed in them; (c) he belonged to the youth section of the National Peasant Party, as appears from a statement he made in 1948; (d) he has no criminal record and, contrary to what he maintains, was not imprisoned during the period he mentions; (e) in 1946-48 he was summoned by the security services on several occasions because of his ideas and questioned about his views ...” C. The action for damages against the RIS 14. The applicant brought proceedings against the RIS, stating that he had never been a member of the Romanian legionnaire movement, that he had not been a student in the Faculty of Sciences at Iaşi University but in the Faculty of Law and that some of the other information provided by the RIS in its letter of 19 December 1990 was false and defamatory. Under the Civil Code provisions on liability in tort he claimed damages from the RIS for the non-pecuniary damage he had sustained. He also sought an order, without relying on any particular legal provision, that the RIS should amend or destroy the file containing the information on his supposed legionnaire past. 15. In a judgment of 6 January 1993 the Bucharest Court of First Instance dismissed the applicant's application on the ground that the statutory provisions on tortious liability did not make it possible to allow it. 16. The applicant appealed. 17. On 18 January 1994 the Bucharest County Court found that the information that the applicant had been a legionnaire was false. However, it dismissed the appeal on the ground that the RIS could not be held to have been negligent as it was merely the depositary of the impugned information, and that in the absence of negligence the rules on tortious liability did not apply. The court noted that the information had been gathered by the State's security services, which, when they were disbanded in 1949, had forwarded it to the Securitate (the State Security Department), which had in its turn forwarded it to the RIS in 1990. 18. On 15 December 1994 the Bucharest Court of Appeal dismissed an appeal by the applicant against the judgment of 18 January 1994 in the following terms: “... the Court finds that the applicant's appeal is ill-founded. As the statutory depositary of the archives of the former State security services, the RIS in letter no. 705567/1990 forwarded to the Ministry of the Interior information concerning the applicant's activities while he was a university student, as set out by the State security services. It is therefore apparent that the judicial authorities have no jurisdiction to destroy or amend the information in the letter written by the RIS, which is merely the depositary of the former State security services' archives. In dismissing his application, the judicial authorities did not infringe either Article 1 of the Constitution or Article 3 of the Civil Code but stayed the proceedings in accordance with the jurisdictional rules laid down in the Code of Civil Procedure.” D. The action for damages against the judges 19. On 13 June 1995 the applicant brought an action for damages against all the judges who had dismissed his application to have the file amended or destroyed. He based his action on Article 3 of the Civil Code, relating to denials of justice, and Article 6 of the Convention. According to the applicant, both the County Court and the Vaslui Court of Appeal refused to register his action. In this connection, the applicant lodged a fresh application with the Commission on 5 August 1998, which was registered under file no. 46597/98 and is currently pending before the Court. E. The application for review 20. In June 1997 the Minister of Justice informed the Director of the RIS that the European Commission of Human Rights had declared the applicant's present application admissible. The Minister consequently asked the Director of the RIS to check once again whether the applicant had been a member of the legionnaire movement and, if that information proved to be false, to inform the applicant of the fact so that he could subsequently make use of it in any application for review. 21. On 6 July 1997 the Director of the RIS informed the Minister of Justice that the information in the letter of 19 December 1990 that the applicant had been a legionnaire had been found by consulting their archives, in which a table drawn up by the Iaşi security office had been discovered that mentioned, in entry 165, one Aurel Rotaru, a “science student, rank-and-file member of the Christian Students' Association, legionnaire”. The Director of the RIS mentioned that the table was dated 15 February 1937 and expressed the view that “since at that date Mr Rotaru was only 16, he could not have been a student in the Faculty of Sciences. [That being so,] we consider that there has been a regrettable mistake which led us to suppose that Mr Aurel Rotaru of Bârlad was the same person as the one who appears in that table as a member of a legionnaire-type organisation. Detailed checks made by our institution in the counties of Iaşi and Vaslui have not provided any other information to confirm that the two names refer to the same person.” 22. A copy of that letter was sent to the applicant, who on 25 July 1997 applied to the Bucharest Court of Appeal to review its decision of 15 December 1994. In his application he sought a declaration that the defamatory documents were null and void, damages in the amount of one leu in respect of non-pecuniary damage and reimbursement of all the costs and expenses incurred since the beginning of the proceedings, adjusted for inflation. 23. The RIS submitted that the application for review should be dismissed, holding that, in the light of the RIS Director's letter of 6 July 1997, the application had become devoid of purpose. 24. In a final decision of 25 November 1997 the Bucharest Court of Appeal quashed the decision of 15 December 1994 and allowed the applicant's action, in the following terms: “It appears from letter no. 4173 of 5 July 1997 from the Romanian Intelligence Service ... that in the archives (shelf-mark 53172, vol. 796, p. 243) there is a table which lists the names of the members of legionnaire organisations who do not live in Iaşi, entry 165 of which contains the following:'Rotaru Aurel – science student, rank ‑ and-file member of the Christian Students' Association, legionnaire'. Since the applicant was barely 16 when that table was drawn up, on 15 February 1937, and since he did not attend lectures in the Iaşi Faculty of Sciences, and since it appears from subsequent checks in the documents listing the names of the members of legionnaire organisations that the name'Aurel Rotaru'does not seem to be connected with an individual living in Bârlad whose personal details correspond to those of the applicant, the Romanian Intelligence Service considers that a regrettable mistake has been made and that the person mentioned in the table is not the applicant. Having regard to this letter, the Court holds that it satisfies the requirements of Article 322-5 of the Code of Civil Procedure as it is such as to completely alter the facts previously established. The document contains details which it was not possible to submit at any earlier stage in the proceedings for a reason beyond the applicant's control. That being so, the date on which the Securitate was formed and the way in which the former security services were organised are not relevant factors. Similarly, the fact, albeit a true one, that the Romanian Intelligence Service is only the depositary of the archives of the former security services is irrelevant. What matters is the fact that letter no. 705567 of 19 December 1990 from the Romanian Intelligence Service (Military Unit no. 05007) contains details which do not relate to the applicant, so that the information in that letter is false in respect of him and, if maintained, would seriously injure his dignity and honour. In the light of the foregoing and in accordance with the aforementioned statutory provision, the application for review is justified and must be allowed. It follows that the earlier decisions in this case must be quashed and that the applicant's action as lodged is allowed.” 25. The court did not make any order as to damages or costs. | The applicant complained that it was impossible to refute what he claimed was untrue information in a file on him kept by the Romanian Intelligence Service (RIS). He had been sentenced to a year’s imprisonment in 1948 for having expressed criticism of the communist regime. |
581 | Deportation of seriously ill persons | I. Particular circumstances of the case A. The applicant 6. The applicant was born in St Kitts and appears to have lived there most of his life. He is one of seven children. One sister and one brother moved to the United States in the 1970s and the rest of the family appears to have followed at unspecified dates. The applicant visited the United States in 1989 to try to join his family. During his stay there he was arrested on 5 September 1991 for possession of cocaine and subsequently sentenced to a three-year term of imprisonment. After one year, he was paroled for good behaviour and deported on 8 January 1993 to St Kitts. B. The applicant ’ s arrival in the United Kingdom and subsequent imprisonment 7. The applicant arrived at Gatwick Airport, London, on 21 January 1993 and sought leave to enter the United Kingdom for two weeks as a visitor. He was found at the airport terminal to be in possession of a substantial quantity of cocaine with a street value of about 120,000 pounds sterling (GBP). The immigration officer refused him leave to enter on the ground that his exclusion was conducive to the public good and gave him notice that he would be removed to St Kitts within a matter of days. However, after being arrested and charged, the applicant was remanded in custody and subsequently prosecuted for being knowingly involved in the fraudulent evasion of the prohibition on the importation of controlled drugs of class A. He pleaded guilty at Croydon Crown Court on 19 April 1993 and was sentenced on 10 May 1993 to six years ’ imprisonment. He apparently behaved well while in H.M. Prison Wayland and was released on licence on 24 January 1996. He was placed in immigration detention pending his removal to St Kitts. Bail was granted by an adjudicator on 31 October 1996 after the Commission ’ s report had been made public. C. Diagnosis of AIDS 8. In August 1994, while serving his prison sentence, the applicant suffered an attack of pneumocystis carinii pneumonia ("PCP") and was diagnosed as HIV (human immunodeficiency virus)-positive and as suffering from acquired immunodeficiency syndrome (AIDS). The infection appears to have occurred some time before his arrival in the United Kingdom. 9. On 3 March 1995, the applicant was granted a period of compassionate leave to be with his mother whose air fare to the United Kingdom to visit him had been covered by charitable donations. 10. On 20 January 1996, immediately prior to his release on licence, the immigration authorities gave directions for the applicant ’ s removal to St Kitts. D. The applicant ’ s request to remain in the United Kingdom 11. By letter dated 23 January 1996, the applicant ’ s solicitors requested that the Secretary of State grant the applicant leave to remain on compassionate grounds since his removal to St Kitts would entail the loss of the medical treatment which he was currently receiving, thereby shortening his life expectancy (see paragraphs 13 and 14 below). This request was refused on 25 January 1996 by the Chief Immigration Officer. In his letter of refusal addressed to the applicant ’ s solicitors the Chief Immigration Officer stated: "In reaching this decision full account was taken of paragraph 4 of the Immigration and Nationality Department B Division Instructions regarding AIDS and HIV-positive cases. You will be aware that paragraph 4 of this instruction which relates to persons whose applications are for leave to enter the United Kingdom states [see paragraph 27 of the judgment below]... While we are saddened to learn of Mr D[...] ’ s medical circumstances we do not accept, in line with Departmental Policy, that it is right generally or in the individual circumstances of this case, to allow an AIDS sufferer to remain here exceptionally when, as here, treatment in this country is carried out at public expense, under the National Health Service. Nor would it be fair to treat AIDS sufferers any differently from others suffering medical conditions ..." E. Judicial review proceedings 12. On 2 February 1996, the applicant applied unsuccessfully to the High Court for leave to apply for judicial review of the decision to refuse him leave to enter. On 15 February 1996, the Court of Appeal dismissed his renewed application. It found that section 3 of the Immigration Act 1971 drew a distinction between leave to enter and leave to remain. It held that the Chief Immigration Officer had correctly treated Mr D. ’ s application as an application for leave to enter and was not required to take into account paragraph 5 of the Home Office guidelines which applied to applications for leave to remain (see paragraphs 27 and 28 below). As to the applicant ’ s argument that the Home Office acted unreasonably or irrationally in not acceding to the compassionate circumstances of his plea, Sir Iain Glidewell stated in his judgment: "Nobody can but have great sympathy for this applicant in the plight in which he finds himself. If he is to return to St Kitts it seems that he will be unable to work because of his illness. His expectation of life, if the medical evidence is correct, may well be shorter than it would be if he remained under the treatment that he is receiving in the United Kingdom, and in many ways his plight will be great. On the other hand he would not be here if he had not come on a cocaine smuggling expedition in 1993; and if he had not been imprisoned he would have gone back to St Kitts, if he had ever come here at all, long before his AIDS was diagnosed. Taking account of the fact that the Court must give most anxious scrutiny to a decision which involves questions particularly of life expectancy, as this one apparently does, nevertheless I cannot find that an argument in this case that the decision of the Chief Immigration Officer was irrational is one that has any hope of success at all. Putting it the opposite way, it seems to me to be one which was well within the bounds of his discretion, and thus is not one with which the Court can properly interfere." F. Reports on the applicant ’ s medical condition, treatment and prognosis 13. Since August 1995, the applicant ’ s "CD4" cell count has been below 10. He has been in the advanced stages of the illness, suffering from recurrent anaemia, bacterial chest infections, malaise, skin rashes, weight loss and periods of extreme fatigue. 14. By letter dated 15 January 1996, Dr Evans, a consultant doctor, stated: "His current treatment is AZT 250 mgs. b.d. and monthly nebulised pentamidine, he occasionally takes mystatin pastilles and skin emollients. In view of the fact that [the applicant] has now had AIDS for over 18 months and because this is a relentlessly progressive disease his prognosis is extremely poor. In my professional opinion [the applicant ’ s] life expectancy would be substantially shortened if he were to return to St Kitts where there is no medication; it is important that he receives pentamidine treatment against PCP and that he receives prompt anti-microbial therapy for any further infections which he is likely to develop ..." 15. In a medical report provided on 13 June 1996, Professor Pinching, a professor of immunology at a London hospital, stated that the applicant had suffered severe and irreparable damage to his immune system and was extremely vulnerable to a wide range of specific infections and to the development of tumours. The applicant was reaching the end of the average durability of effectiveness of the drug therapy which he was receiving. It was stated that the applicant ’ s prognosis was very poor and limited to eight to twelve months on present therapy. It was estimated that withdrawal of the proven effective therapies and of proper medical care would reduce that prognosis to less than half of what would be otherwise expected. G. Medical facilities in St Kitts 16. By letter dated 20 April 1995, the High Commission for the Eastern Caribbean States informed the doctor treating the applicant in prison that the medical facilities in St Kitts did not have the capacity to provide the medical treatment that he would require. This was in response to a faxed enquiry of the same date by Dr Hewitt, the managing medical officer at H.M. Prison Wayland. By letter of 24 October 1995, Dr Hewitt informed the Home Office of the contents of the letter from the High Commission, which had also been sent to the Parole Unit on 1 May 1995. He stated that the necessary treatment was not available in St Kitts but was widely and freely available in the United Kingdom and requested that due consideration be given to lifting the deportation order in respect of the applicant. By letter dated 1 August 1996, the High Commission for the Eastern Caribbean States confirmed that the position in St Kitts had not changed. 17. By letter dated 5 February 1996, the Antigua and Barbuda Red Cross informed the applicant ’ s representatives that they had consulted their officer on St Kitts who stated that there was no health care providing for drugs treatment of AIDS. Results of enquiries made by the Government of the authorities in St Kitts suggest that there are two hospitals in St Kitts which care for AIDS patients by treating them for opportunistic infections until they are well enough to be discharged, and that an increasing number of AIDS sufferers there live with relatives. H. The applicant ’ s family situation in St Kitts 18. The applicant has no family home or close family in St Kitts other than, according to information provided by the Government, a cousin. His mother, who currently lives in the United States, has declared that her age, bad health and lack of resources prevent her from returning to St Kitts to look after her son if he were to be returned there. She has also stated that she knew of no relatives who would be able to care for him in St Kitts. I. The applicant ’ s situation since the adoption of the Commission ’ s report 19. When granted bail on 31 October 1996 (see paragraph 7 above) the applicant was released to reside in special sheltered accommodation for AIDS patients provided by a charitable organisation working with homeless persons. Accommodation, food and services are provided free of charge to the applicant. He also has the emotional support and assistance of a trained volunteer provided by the Terrence Higgins Trust, the leading charity in the United Kingdom providing practical support, help, counselling and legal and other advice for persons concerned about or having AIDS or HIV infection. 20. In a medical report dated 9 December 1996 Dr J.M. Parkin, a consultant in clinical immunology treating the applicant at a London hospital, noted that he was at an advanced stage of HIV infection and was severely immunosuppressed. His prognosis was poor. The applicant was being given antiretroviral therapy with "D4T" and "3TC" to reduce the risk of opportunistic infection and was continuing to be prescribed pentamidine nebulisers to prevent a recurrence of PCP. Preventative treatment for other opportunistic infections was also foreseen. Dr Parkin noted that the lack of treatment with anti-HIV therapy and preventative measures for opportunistic disease would hasten his death if he were to be returned to St Kitts. 21. The applicant was transferred to an AIDS hospice around the middle of January 1997 for a period of respite care. At the beginning of February there was a sudden deterioration in his condition and he had to be admitted to a hospital on 7 February for examination. At the hearing before the Court on 20 February 1997, it was stated that the applicant ’ s condition was causing concern and that the prognosis was uncertain. According to his counsel, it would appear that the applicant ’ s life was drawing to a close much as the experts had predicted (see paragraph 15 above). | The applicant, originally from St Kitts (in the Caribbean), was arrested for cocaine possession upon his arrival in the United Kingdom and was sentenced to six years’ imprisonment. It was discovered that he suffered from AIDS. Before his release, an order was made for his deportation to St Kitts. He claimed that his deportation would reduce his life expectancy as no treatment of the kind he had been receiving in the United Kingdom was available in St Kitts. |
151 | Home birth | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and lives in Zagreb. 6. She gave birth to her first three children in hospital. In 2011 she became pregnant with her fourth child and had a due date in February 2012. 7. In November 2011 she sent a letter to the Croatian Chamber of Midwives ( Hrvatska Komora Primalja ), enquiring about the possibility of having professional assistance with a home birth. She explained that her first three hospital deliveries had gone normally, without the need for much medical intervention, but that she had not felt fulfilled afterwards. She therefore wanted to give birth to her fourth child at home. 8. On 1 December 2011 she received a reply that according to the relevant domestic legislation health professionals, including midwives, were unable to assist with home births. In particular, although the Act on Midwifery allowed the setting up of private practices by midwives, the Healthcare Act, as the general Act in the sector, still did not expressly provide for such a possibility. Therefore, since the matter was not clearly regulated, no midwife had set up a private practice or officially assisted with home births. The letter also cited a statement from the Ministry of Health and Social Welfare ( Ministarstvo zdravstva i socijalne skrbi Republike Hrvatske - hereinafter “the Ministry of Health”) issued in August 2011 and published on the Croatian Chamber of Midwives ’ website: “Having regard to the current circumstances, where the requirements for organising a system of professionally conducted home births do not exist (education and training of personnel) and where the other accompanying elements (availability of emergency transport and proper admission [ to a medical facility ] in the case of complications) which would enable safe delivery at home are lacking, we are of the opinion that in this area of healthcare the lawmaker has ensured, as far as possible, all the conditions for the care of mothers and the right of children to life and health. Considering the above, we are of the opinion that the protection of children, who do not choose the circumstances of their coming into this world, takes precedence over respect for a woman ’ s right to freely choose to give birth outside a medical facility .” The Croatian Chamber of Midwives thus declined to assist with the applicant ’ s planned home birth. It noted that home births nevertheless occurred in Croatia, and for that reason it had urged the Ministry of Health to clearly regulate the matter as soon as possible. 9. On 15 February 2012 the applicant gave birth to her child at home, assisted by a midwife from abroad. 10. After the birth a paediatrician and a gynaecologist allegedly declined to examine the applicant and her baby but she eventually managed to find doctors who examined them both. 11. On 23 February 2012 the applicant registered the birth and obtained a birth certificate. II. GENERAL INFORMATION PERTAINING TO HOME BIRTHS IN CROATIA A. Statements by the Ministry of Health and the Ministry of Administration 12. On 11 May 2011 the Ministry of Health sent a letter in reply to an enquiry from the Ombudswoman for Children ( Pravobraniteljica za djecu ), which stated that the relevant domestic law provided that babies were to be delivered in medical facilities. The question of home births had not been regulated by law and medical assistance in such procedures was considered as quackery. It further stated that home births were the personal responsibility of the mother and the person assisting with the delivery. In the event of a delivery outside a medical facility and where a woman claiming to be the mother did not have any medical documentation, the doctor carrying out the first examination of the child was obliged to make note of the absence of such documents. The doctor was not allowed to register data which he or she was not able to verify. 13. On 25 August 2011 the Ministry of Administration ( Ministarstvo uprave Republike Hrvatske ) sent a letter in reply to an enquiry from the Parents in Action - Roda NGO ( Roditelji u Akciji – Roda ) stating that the law provided for the possibility to register the civil status of a child born outside a medical facility. It further stated that officials were obliged to verify data reported to them before putting anything down in the State register. Consequently, a person reporting the birth of a child born outside a medical facility was required to submit proof that the woman reported as the child ’ s mother had indeed given birth to the child. The medical documentation required for proving such circumstances was a matter for the health administration authorities. 14. On 31 May 2012 the Ministry of Health replied to an enquiry from Parents in Action – Roda NGO by saying that it had never instructed doctors not to examine children born at home. On the contrary, having regard to the increased frequency of situations in which doctors were faced with having to examine children born at home without any medical documentation, it had consistently held that doctors were obliged to examine such children but were not allowed to register any data that they were not able to verify. It added that home birth was still not regulated by law and that therefore there was no mechanism for registering requests for home birth or regulations on the duty to report them. B. Report of action against midwives 15. On 24 January 2012 the Croatian Chamber of Midwives reported on a case in which, according to the media coverage, a woman who had given birth at home had been separated from her child for two days. In particular, the hospital had called the police and social workers in order to establish that she was indeed the child ’ s mother after she had refused to be examined by a gynaecologist in a hospital. In addition, several midwives suspected of having taken part in the birth had been questioned by the police. 16. According to information submitted by the Government, no health professional has ever been prosecuted in criminal proceedings or sanctioned for assisting with a home birth. III. REPORTS ON HOSPITAL BIRTH PRACTICES IN CROATIA 17. In the Concluding Observations on the combined fourth and fifth periodic reports on Croatia issued on 24 July 2015, the Committee on the Elimination of Discrimination against Women expressed concern regarding the lack of oversight procedures and mechanisms for ensuring adequate standards of care, the protection of women ’ s rights and their autonomy during deliveries and the lack of options for giving birth outside hospitals. 18. A survey on maternity practices in Croatia undertaken by the Parents in Action - Roda NGO in March 2015 noted situations of women ’ s wishes being disregarded by medical staff during childbirth, of a lack of consent for procedures conducted during labour, and limits on the presence of an accompanying person during childbirth. 19. The Gender Equality Ombudsperson ( Pravobraniteljica za ravnopravnost spolova ) issued a research report in 2013 which noted inconsistencies in hospital practices regarding the presence of an accompanying person during childbirth. | This case concerned Croatian legislation on home births. The applicant in the case was a mother who had given birth to her fourth child at home with the help of a midwife from abroad. She alleged in particular that, although Croatian law allowed home births, women such as her could not make this choice in practice because they were not able to get professional help. |
150 | Home birth | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 1985 and 1980 and live in Jilemnice and Prague respectively. A. Application lodged by Ms Šárka Dubská 9. The applicant gave birth to her first child in hospital in 2007 without any complications. According to her, during the birth the medical personnel present were urging her to agree to undergo various kinds of medical intervention even though she had expressly stated her wish not to be subjected to any unnecessary medical treatment. She was also forced to give birth in a position she did not find comfortable. She wanted to leave the hospital a few hours after the birth as both she and the baby were healthy, but a doctor ordered her to stay in the hospital. She therefore did not leave until the next day, when she presented a letter from her paediatrician, who confirmed that the applicant would take care of the child. 10. In 2010 the applicant became pregnant for the second time with an expected delivery date in the middle of May 2011. The pregnancy was free from complications and the medical examinations and tests did not indicate any problems. Since she considered that giving birth in a hospital had been stressful for her, the applicant decided to give birth at home and searched for a midwife to assist at the birth. However, she was unable to find any midwife who was willing to assist her with a home birth. 11. On 5 April 2011 she wrote to her health-insurance company and to the Liberec Regional Office ( krajský úřad ) asking for help in finding a midwife. 12. On 7 April 2011 the health-insurance company replied that Czech legislation did not provide for the possibility of a public health-insurance company covering costs arising from home births and that it therefore had no contracts with any health professionals providing such services. Moreover, prevailing expert medical opinion did not approve of home births. 13. In a letter of 13 April 2011 the Regional Office added that the midwives listed in its register of health professionals were, in any event, only allowed by law to attend births at premises possessing the technical equipment required by Decree no. 221/2010 and not in a private home. 14. Not having found any health professional to assist her, the applicant gave birth to her son alone at home on 11 May 2011. 15. On 1 July 2011 she lodged a constitutional appeal ( ústavní stížnost ), complaining that she had been denied the possibility of giving birth at home with the assistance of a health professional, in violation of her right to respect for her private life. 16. On 28 February 2012 the Constitutional Court ( Ústavní soud ) dismissed the appeal, holding that it would be contrary to the principle of subsidiarity for it to decide on the merits of the case, because the applicant had not exhausted all the available remedies, which included an action for protection of personal rights under the Civil Code and an application for judicial review under Article 82 of the Code of Judicial Administrative Procedure. It nevertheless expressed its doubts as to the compliance of Czech legislation with Article 8 of the Convention and asked the relevant parties to initiate a serious and well-informed debate about new legislation. Nine out of the fourteen judges attached separate opinions to the decision, in which they disagreed with the reasoning behind it. Most of them considered that the Constitutional Court should have dismissed the appeal as an actio popularis and should have refrained from expressing any views on the constitutionality of the legislation concerning home births. B. Application lodged by Ms Alexandra Krejzová 17. The applicant is the mother of two children who were born at home in 2008 and 2010 with the assistance of a midwife. The midwives attended the births without any authorisation from the State. 18. According to the applicant, before deciding to give birth at home, she had visited several hospitals, which had all refused her requests to deliver the baby without any medical intervention that was not strictly necessary. They had also refused to agree to her wish for uninterrupted contact with the baby from the moment of birth, as the regular practice was to take the child away from the mother immediately after the birth to be weighed and measured and for further medical observation for a period of two hours. 19. At the time of lodging the present application, the applicant was pregnant again, with an expected delivery in the middle of May 2012. The pregnancy was free from complications and she again wished to give birth at home with the assistance of a midwife. However, she was unable to find a midwife willing to assist because of the risk of a heavy fine if medical services were provided without authorisation. The applicant asked various authorities to help to find a solution. 20. In a letter of 18 November 2011 the Ministry of Health replied that it did not provide medical services to individual patients and that the applicant should make enquiries to the City of Prague ( Město Praha ), which, acting as a regional office, registered and issued licences to health professionals. 21. On 29 November 2011 the applicant ’ s health-insurance company informed her that the attendance of a health professional at a home birth was not covered by public insurance. 22. On 13 December 2011 the City of Prague informed the applicant that no midwife registered in Prague was authorised to assist with home births. 23. On 7 May 2012 the applicant gave birth to a child in a maternity hospital in Vrchlabí, 140 km away from Prague. She had chosen that hospital because of its reputation for respecting the wishes of mothers during delivery. Nevertheless, according to her, not all her wishes had been respected. Despite the fact that both she and the child had been healthy and that no complications had occurred during the birth, the applicant had had to stay in the hospital for seventy-two hours. The newborn baby had been separated from her after the birth, and before leaving the maternity hospital the remains of the child ’ s umbilical cord had been cut off despite her wishes to the contrary. II. GENERAL INFORMATION PERTAINING TO HOME BIRTHS IN THE CZECH REPUBLIC A. Guidelines issued and action taken by the Ministry of Health 24. In its bulletin no. 2/2007 of February 2007 the Ministry of Health published practice guidelines, which stated: “Conducting a delivery in the Czech Republic is regarded as a health-care service that is provided only in a health-care institution. Each health-care institution must fulfil the statutory requirements ... and the requirements laid down by the relevant secondary legislation.” 25. On 20 March 2012 the Ministry of Health set up an expert committee on obstetrics with the objective of studying the issue of home births. There were representatives of care recipients, midwives, physicians ’ associations, the Ministry of Health, the Government ’ s Commissioner for Human Rights and public health-insurance companies. The representatives of the physicians ’ associations boycotted the meetings, declaring that the current state of affairs was satisfactory and that, in their view, there was no need to change anything. Subsequently, the Minister of Health removed the representatives of care recipients, midwives and the Government ’ s Commissioner for Human Rights, with the argument that only by changing the committee ’ s composition in this way it would be possible for it to agree on certain conclusions. 26. On 18 January 2013 the Governmental Council for Equal Opportunities for Women and Men ( Rada vlády pro rovné příležitosti žen a mužů ), an advisory body to the Government, recommended the prevention of further discrimination against women in the enjoyment of their right to a free choice of the method and circumstances of giving birth and the place of delivery. It also recommended the prevention of discrimination against midwives by permitting them to practise their profession fully through their inclusion in the public health-insurance system. The Council also referred to the recommendations of the Committee on the Elimination of Discrimination against Women, which monitors implementation of the Convention on the Elimination of All Forms of Discrimination against Women, to support its position that women should have a choice of where to give birth. 27. In its bulletin no. 8/2013 published on 9 December 2013, which replaced the previous practice guidelines of 2007, the Ministry of Health described the procedure for providers of health-care services when discharging newborns into their own social environment. It stated that the recommendation of specialists was that a newborn should be discharged from the maternity hospital no sooner than seventy-two hours after birth. The new procedure allows for the discharge of the newborn from the maternity hospital less than seventy-two hours after the birth at the request of the newborn ’ s legal representative, provided that the latter: “(a) has submitted a written withdrawal of his or her agreement to the provision of medical services to the newborn, or a written statement declaring his or her disagreement with the provision of the medical services, or, alternatively, such agreement or disagreement has been entered in the newborn ’ s medical documentation ...; (b) has been demonstrably and duly informed about the possible consequences following the discharge of the newborn before seventy-two hours have elapsed since the birth ...; (c) has been duly informed that – in the interests of the subsequent healthy development of the newborn – the Czech specialist medical associations recommend: 1. that a clinical examination be conducted within twenty-four hours of the discharge of the newborn ...; 2. that a blood sample be taken within forty-eight to seventy-two hours following the birth for the purposes of screening for hereditary metabolic malfunctions ...” B. Data on perinatal mortality 28. According to estimated data provided by the World Health Organisation for 2004, the Czech Republic was among the countries with the lowest perinatal mortality rate, which is defined as the number of stillbirths and deaths in the first week of life. The rate for the Czech Republic was 0.4%. In other European countries the figures ranged from 0.5% in Sweden and Italy to 4.7% in Azerbaijan. In most European countries the figures were below 1%. According to their 2006 report, perinatal mortality is an important indicator of maternal care and maternal health and nutrition; it also reflects the quality of available obstetric and paediatric care, comparing different countries. The report recommended that, if possible, all foetuses and infants weighing at least 500 g at birth, whether alive or dead, should be included in the statistics. The reported data regarding stillbirths were not adjusted to this effect in the study. 29. According to the European Perinatal Health Report on the health and care of pregnant women and babies in Europe in 2010, issued in 2013 within the framework of the activities of the Euro-Peristat Project, the Czech Republic was among the countries with the lowest mortality rate for newborns in the first twenty-seven days of their life. The rate was 0.17%. The data for other countries included in the report, mostly European Union member States, ranged from 0.12% for Iceland to 0.55% for Romania. C. Criminal proceedings against midwives 30. It appears that no midwives have been prosecuted in the Czech Republic for attending home births per se. Several have been prosecuted, however, for alleged malpractice in connection with a delivery at home. The applicants referred to the cases of Ms Š. and Ms K., who are both well-known promoters of natural deliveries without any unnecessary medical intervention and who used to regularly conduct home deliveries. 31. On 27 March 2013 the Prague 6 District Court ( obvodní soud ) found Ms Š. guilty of negligently causing the death of a baby who was stillborn. She was sentenced to two years ’ imprisonment, suspended for five years, and prohibited from practising the occupation of midwife for three years. The culpability of Ms Š. was based on the fact that she had not strongly advised the mother to contact a medical facility when consulted by telephone during a labour that was already ongoing at home. She had thus given flawed advice to the mother-to-be without actually examining her. The conviction was upheld on appeal by the Prague Municipal Court ( městský soud ) on 29 May 2013, although the sentence was changed to fifteen months ’ imprisonment, suspended for thirty months, and two years ’ prohibition on practising as a midwife. 32. On 29 April 2014 the Supreme Court ( Nejvyšší soud ) quashed the judgments of the lower courts. Ms Š. was eventually acquitted by the District Court on 23 May 2016. It appears that the proceedings are currently pending before the appellate court. 33. On 21 September 2011 the Prague 3 District Court found Ms K. guilty of negligently causing bodily harm to a baby whose home birth she had attended and who had stopped breathing during the delivery. The baby died several days later. Ms K. was sentenced to two years ’ imprisonment, suspended for five years, prohibited from practising as a midwife for five years, and ordered to pay 2,700,000 Czech korunas (CZK) (equivalent to 105,000 euros (EUR)) by way of reimbursement of the costs incurred by the insurance company in treating the child until the latter ’ s death. According to the court, the malpractice on the part of Ms K. consisted in the fact that she had not followed the standard procedures for deliveries as laid down by the Czech Medical Association ( Česká lékařská komora ) and her conduct had thus been non lege artis. The criminal complaint was not lodged by the parents but by a hospital. 34. On 24 July 2013 the Constitutional Court quashed all the judgments in the case against Ms K., finding that there had been a violation of her right to a fair trial. It held that the conclusions of the ordinary courts as to Ms K. ’ s guilt had been too subjective and were not supported by the evidence beyond all reasonable doubt, thereby violating the principle of the presumption of innocence. It stated in particular that the courts had uncritically relied on an expert opinion which they had failed to subject to thorough scrutiny. It held that – on the basis of the expert opinion – the courts had applied very strict liability to the conduct of Ms K. in a situation where it had not been clear how she could have prevented the baby ’ s death. Moreover, it had been established that she had tried to help the baby and had called an ambulance immediately after establishing that the baby had hypoxia. To foresee every possible complication during delivery and be able to react to it immediately, as was required of Ms K., would ultimately lead de facto to an absolute prohibition of home births. In that context the Constitutional Court noted: “... a modern democratic State founded on the rule of law is based on the protection of individual and inalienable freedoms, the delimitation of which closely relates to human dignity. That freedom, which includes freedom in personal activities, is accompanied by a certain degree of acceptable risk. The right of parents to a free choice of the place and mode of delivery is limited only by the interest in the safe delivery and health of the child; that interest cannot, however, be interpreted as an unambiguous preference for deliveries in hospital.” I. Decree of the Ministry of Health no. 99/2012 61. The Decree on Minimum Personnel Requirements for the Provision of Health-care Services ( vyhláška o požadavcích na minimální personální zabezpečení zdravotních služeb ) entered into force on 1 April 2012. The chapter entitled “Personnel Requirements for Provision of Home Care” indicates that nursing care in gynaecology and birth assistance is to be provided by a midwife qualified to practise her profession independently and a midwife with a special qualification competent to practise her profession independently if activities specified in another legal provision are to be carried out (midwife for intensive care; midwife for intensive care in neonatology; or midwife for community care). V. COMPARATIVE-LAW MATERIAL 67. From the information available to the Court, it would appear that planned home births are provided for in domestic law and regulated in twenty member States of the Council of Europe (Austria, Belgium, Denmark, Estonia, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Luxembourg, the Netherlands, Poland, Sweden, Switzerland, “the former Yugoslav Republic of Macedonia” and the United Kingdom). In these countries, the right to a home birth is never absolute and is always dependent on certain medical conditions being satisfied. Moreover, national health insurance covers home birth in only fifteen of these countries. 68. It would also appear that home births are unregulated or under-regulated in twenty-three member States (Albania, Armenia, Azerbaijan, Bosnia and Herzegovina, Bulgaria, Croatia, Finland, Georgia, Lithuania, Malta, the Republic of Moldova, Monaco, Montenegro, Portugal, Romania, Russia, San Marino, Serbia, Slovakia, Slovenia, Spain, Turkey and Ukraine). It would appear that in some of these countries, private home births do take place but in a legal vacuum and without national health cover. Moreover, no legislation has been found which prohibits the assistance of midwives at home births. In a very small number of the member States surveyed, disciplinary or criminal sanctions are possible, but appear to be rarely imposed. | This case concerned a law in the Czech Republic which made it impossible in practice for mothers to be assisted by a midwife during home births. The applicants, two women who wished to avoid unnecessary medical intervention in delivering their babies, complained that because of this law they had had no choice but to give birth in a hospital if they wished to be assisted by a midwife. |
804 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The first applicant (“R.P.”), the second applicant (“A.P.”), the third applicant (“M.P.”) and the fourth applicant (“B.P.”) were born in 1985, 1982, 1950 and 1941 respectively. All four applicants are British citizens who currently live in Nottingham, England. 6. A.P., M.P. and B.P. are, respectively, R.P.’s brother, mother and father. 7. On 7 May 2006 R.P.’s daughter (“K.P.”) was born prematurely at 27 weeks’ gestation. The birth was unexpected as R.P. had not known that she was pregnant. R.P. was not in a relationship with K.P.’s father and he played no further part in the proceedings. 8. As a consequence of her premature birth, K.P. suffered from many serious medical conditions. She had serious chronic lung disease (broncho-pulmonary dysplasia), which rendered her oxygen-dependent, she had bleeding on both sides of her brain (bilateral intraventricular haemorrhage), she was immuno-suppressed and therefore very susceptible to infection, and she had a congenital heart defect which was repaired by surgery on 6 June 2006. Although her health improved as she developed, she continued to require skilled and labour-intensive day-to-day care. She was regarded as at high risk of cot death and initially required feeding through a nasal-gastric tube. 9. It was observed that from K.P.’s birth until 22 August 2006 R.P. was only visiting K.P. for 1-2 hours a day. She had to be prompted to visit for longer periods and it was noted that she could not complete basic care tasks without prompting and support. A multi-agency meeting took place on 22 August 2006, at which the hospital drew up a schedule of tasks which R.P. would need to demonstrate she could satisfactorily complete before K.P. could safely be discharged into her care. A “core assessment” prepared at this time recorded that R.P. had previously been involved with the local authority’s mental health services and was believed to have learning disabilities; that her relationship with A.P., M.P. and B.P. fluctuated, with allegations having been made of violence and aggression; that there were concerns about her relationship with K.P.’s father; and that M.P. and B.P. were unsuitable to care for K.P. because of poor household conditions and concerns about family dynamics. 10. On 30 August 2006 a social worker met with R.P., M.P. and B.P. to discuss the local authority’s concerns as to the care of K.P. It was noted that R.P. had difficulty understanding and articulating the nature and extent of K.P.’s health needs and refused to accept that she needed help to care properly for her. However, she did agree to participate in a Parenting Assessment Manual (“PAM”) Assessment, which was a tool designed to assess parents with learning disabilities. The assessment, which was completed on 1 September 2006, concluded that R.P. struggled to complete care tasks for R.P. and demonstrated little understanding of her care needs. 11. On 8 September 2006 care proceedings were commenced in relation to K.P. At this stage the aim of the care plan was to identify how the local authority could keep K.P. alive and safe in a home environment while R.P. was given the opportunity to develop her care skills. On 15 September 2006 an interim care order was made in favour of the local authority and on 23 November 2006 K.P. was discharged from hospital into the care of foster parents. 12. R.P. instructed a solicitor (“S.C.”) to represent her in the care proceedings. Both S.C. and her very experienced counsel developed serious concerns that R.P. was unable to understand the advice she was being given. Pursuant to a court order, S.C. and the local authority jointly instructed a consultant clinical psychologist (“H.J.”) to assess R.P. Prior to being assessed, attendance notes from both the counsel and S.C. indicate that they informed R.P. that the purpose of the assessment was to determine whether or not she had capacity to provide instruction and, if she did not, the Official Solicitor would have to be appointed to act on her behalf. 13. In her report H.J. found that R.P. had a significant learning disability and concluded: “Because of the difficulties [RP] has in understanding, processing and recalling information, I believe that she will find it very difficult to understand the advice given by her solicitor. She will not be able to make informed decisions on the basis of this advice, particularly when this involved anticipating possible outcomes. It would be appropriate for the Official Solicitor to become involved.” 14. On 26 October 2006 S.C. wrote to the Official Solicitor to advise him of the contents of H.J.’s report. On 31 October 2006 the Official Solicitor indicated that he would consent to act on behalf of R.P. if invited to do so. On 7 November 2006 Nottingham County Court invited the Official Solicitor to act for R.P. and he formally consented to act as her guardian ad litem on 11 December 2006. In accordance with his usual practice, a case worker (“LM”) wrote to S.C. to confirm that she was to be instructed by the Official Solicitor on behalf of R.P. She enclosed with the letter a further letter and leaflet to be given to R.P. The letter stated that: “You may already know that on 7 November 2006 the Official Solicitor was asked to act as your guardian ad litem. This means that he will instruct your solicitor for you. He can only do this if a doctor or the court has decided that you cannot do so yourself. In your case, HJ completed a report dated 23 October 2006 which shows that you have a learning disability. If your condition improves and HJ or another doctor says that you can manage on your own, the Official Solicitor will of course step down and no longer act for you. Your solicitor will keep in touch with you, let you know what is happening and tell the Official Solicitor how you feel about things... The Official Solicitor will consider the evidence of all the people involved as well as your wishes and views before he files a statement at court on your behalf. He will do his best to protect your interests but must, of course, bear in mind what is best for KP. If you are not happy with the way in which your case is conducted you should first discuss the matter with your solicitor or with me. If you are still not satisfied you can write to the complaints officer...” 15. The content of the leaflet given to R.P. is set out in full below: “ The Official Solicitor Who he is, and what he does. WHO IS THE OFFICIAL SOLICITOR? Alistair Pitblado is the Official Solicitor to the Supreme Court. It is his job to make decisions on behalf of people who are unable to represent themselves in Civil and Family Proceedings (the client). WHY THE OFFICIAL SOLICITOR ACTS IN A CASE The Official Solicitor agrees to act either because the client is under the age of 18, or because the client’s doctor does not think that they can cope with making decisions about their court case. Legal matters can be difficult to understand and very stressful and the Official Solicitor is here to protect the client’s interests. HOW WILL THE OFFICIAL SOLICITOR HELP? The Official Solicitor makes decisions about the court case such as whether to bring, defend or settle a claim. We will arrange legal representation in court for the client where he considers this necessary. He will usually ask a firm of solicitors to help him with the case. The Official Solicitor can only make decisions about the questions arising in the court case. He cannot make any other decisions for the client. WHO CAN I SPEAK TO ABOUT THIS CASE? Your solicitor should be the primary contact. The Official Solicitor has assistants who help him deal with every case. These assistants are called case managers. The case manager assigned to your case will provide you with details of the solicitors they have appointed on your behalf. WILL THE CLIENT BE CONSULTED? Shortly after he agrees to act the Official Solicitor will usually instruct a firm of solicitors as his solicitors, either the solicitors already instructed by the client or new solicitors identified by the case manager. Such solicitors, or a senior solicitor within the firm, should be a member of the Law Society Children Panel or the Resolution (formerly SFLA) Family Panel. The instructed solicitor will communicate with the client and attend court hearings and will report on the outcome to the case manager. Fees and Charges In the vast majority of cases, the Official Solicitor acts in the capacity of Litigation/Next Friend and instructs outside solicitors. The Official Solicitor does not make any charge for acting in the capacity of Litigation/Next Friend. Where the legal work in a case is conducted in-house, the Official Solicitor will, where appropriate, seek to recover his costs (or in medical cases there is a practice whereby he is entitled to half his costs) using an hourly charging rate. We will write to you separately with further details if this applies in your case. | The first applicant was the mother of a premature baby who suffered from a number of serious medical conditions requiring constant care. The local authority commenced care proceedings owing to doubts over the ability of the first applicant, who had learning disabilities, to provide such care. The first applicant instructed lawyers to represent her in those proceedings, but amid serious concerns that she was unable to understand their advice, a consultant clinical psychologist was asked to carry out an assessment to determine whether or not she had capacity to provide instructions. The psychologist concluded that she would find it very difficult to understand the advice given by her lawyers and would not be able to make informed decisions on the basis of that advice. The court then appointed the Official Solicitor7 to act as the first applicant’s guardian ad litem and to provide instructions to her lawyer on her behalf. The first applicant complained that the appointment of the Official Solicitor had violated her right of access to a court. |
1,022 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | I 1. The purpose of the Commission's request - to which is appended the Report drawn up by the Commission in accordance with the provisions of Article 31 (art. 31) of the Convention - is to submit the case of G.R. Lawless to the Court so that it may decide whether or not the facts of the case disclose that the Irish Government has failed in its obligations under the Convention. As appears from the Commission's request and from its Memorial, G.R. Lawless alleges in his Application that, in his case, the Convention has been violated by the authorities of the Republic of Ireland, inasmuch as, in pursuance of an Order made by the Minister of Justice under section 4 of Act No. 2 of 1940 amending the Offences against the State Act, 1939, he was detained without trial, between 13th July and 11th December 1957, in a military detention camp situated in the territory of the Republic of Ireland. 2. The facts of the case, as they appear from the Report of the Commission, the memorials, evidence and documents laid before the Court and the statements made by the Commission and by the Irish Government during the oral hearings before the Court, are in substance as follows: 3. G.R. Lawless is a builder's labourer, born in 1936. He is ordinarily resident in Dublin ( Ireland ). 4. G.R. Lawless admitted before the Commission that he had become a member of the IRA ("Irish Republican Army") in January 1956. According to his own statements, he left the IRA in June 1956 and a splinter group of the IRA in December 1956. II 5. Under the Treaty establishing the Irish Free State, signed on 6th December 1921 between the United Kingdom and the Irish Free State, six counties situated in the North of the Island of Ireland remained under British sovereignty. 6. On several occasions since the foundation of the Irish Free State, armed groups, calling themselves the "Irish Republican Army" (IRA), have been formed, for the avowed purpose of carrying out acts of violence to put an end to British sovereignty in Northern Ireland. At times the activities of these groups have been such that effective repression by the ordinary process of law was not possible. From time to time, the legislature has, therefore, conferred upon the Government special powers deal with the situation created by these unlawful activities; and such powers have sometimes included the power of detention without trial. On 29th December 1937 the Constitution at present in force in the Irish Republic was promulgated. In May 1938 all persons detained for political offences were released. When the political situation in Europe foreshadowed war, the IRA resumed its activities and committed fresh acts of violence. At the beginning of 1939 the IRA published documents described by it as a "declaration of war on Great Britain ". Following that declaration, the IRA, operating from territory of the Republic of Ireland, intensified its acts of violence on British territory. 7. In order to meet the situation created by the activities of the IRA, the Parliament of the Republic of Ireland passed the Offences against the State Act, 1939, which came into force on 14th June 1939. III 8. Part II of the 1939 Act defines the "activities prejudicial to the preservation of public peace and order or to the security of the State". Part III contains provisions relating to organisations whose activities come under the Act and any which may therefore be declared an "unlawful organisation" by order of the Government. Section 21 of the 1939 Act provides as follows: Section 21: "(1) It shall not be lawful for any person to be a member of an unlawful organisation; (2) Every person who is a member of an unlawful organisation in contravention of this section shall be guilty of an offence under this section and shall: (a) on summary conviction thereof, be liable to a fine not exceeding fifty pounds, or at the discretion of the court, to imprisonment for a term not exceeding three months or to both such fine and such imprisonment; or (b) on conviction thereof on indictment, be liable to imprisonment for a term not exceeding two years." Part IV of the 1939 Act contains various provisions relating to the repression of unlawful activities, including, in section 30, the following provision relating to the arrest and detention of persons suspected of being concerned in unlawful activities: Section 30: "(1) A member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may without warrant stop, search, interrogate, and arrest any person, or do any one or more of those things in respect of any person, whom he suspects of having committed or being about to commit or being or having been concerned in the commission of an offence under any section or sub-section of this Act, or an offence which is for the time being a scheduled offence for the purposes of Part V of this Act or whom he suspects of carrying a document relating to the commission or intended commission of any such offence as aforesaid. (2) Any member of the Gárda Síochána (if he is not in uniform on production of his identity card if demanded) may, for the purpose of the exercise of any of the powers conferred by the next preceding sub-section of this section, stop and search (if necessary by force) any vehicle or any ship, boat, or other vessel which he suspects to contain a person whom he is empowered by the said sub-section to arrest without warrant. (3) Whenever a person is arrested under this section, he may be removed to and detained in custody in a Gárda Síochána station, a prison, or some other convenient place for a period of twenty-four, hours from the time of his arrest and may, if an officer of the Gárda Síochána not below the rank of Chief Superintendent so directs, be so detained for a further period of twenty-four hours. (4) A person detained under the next preceding sub-section of this section may, at any time during such detention, be charged before the District Court or a Special Criminal Court with an offence, or be released by direction of an officer of the Gárda Síochána, and shall, if not so charged or released, be released at the expiration of the detention authorised by the said sub-section. (5) A member of the Gárda Síochána may do all or any of the following things in respect of a person detained under this section, that is to say: (a) demand of such person his name and address; (b) search such person or cause him to be searched; (c) photograph such person or cause him to be photographed; (d) take, or cause to be taken, the fingerprints of such person. (6) Every person who shall obstruct or impede the exercise in respect of him by a member of the Gárda Síochána of any of the powers conferred by the next preceding sub-section of this section or shall fail or refuse to give his name and address or shall give, in response to any such demand, a name or an address which is false or misleading shall be guilty of an offence under this section and shall be liable on summary conviction thereof to imprisonment for a term not exceeding six months." Part V of the 1939 Act is concerned with the establishment of "Special Criminal Courts" to try persons charged with offences under the Act. Lastly, Part VI of the 1939 Act contained provisions authorising any Minister of State - once the Government had brought that Part of the Act into force - to order, in certain circumstances, the arrest and detention of any person whom he was satisfied was engaged in activities declared unlawful by the Act. 9. On 23rd June 1939, i.e. nine days after the entry into force of the Offences Against the State Act, the Government made an order under section 19 of the Act that the IRA, declared an "unlawful organisation", be dissolved. 10. About 70 persons were subsequently arrested and detained under Part VI of the Act. One of those persons brought an action in the High Court of Ireland, challenging the validity of his detention. The High Court declared the detention illegal and ordered the release of the person concerned by writ of habeas corpus. The Government had all the persons detained under the same clauses released forthwith. 11. Taking note of the High Court's judgment, the Government tabled in Parliament a Bill to amend Part VI of the Offences against the State Act, 1939. The Bill, after being declared constitutional by the Supreme Court, was passed by Parliament on 9th February 1940, becoming the Offences against the State (Amendment) Act, 1940 (No. 2 of 1940). This Act No. 2 of 1940 confers on Ministers of State special powers of detention without trial, "if and whenever and so often as the Government makes and publishes a proclamation declaring that the powers conferred by this Part of this Act are necessary to secure the preservation of public peace and order and that it is expedient that this Part of this Act should come into force immediately" (section 3, sub-section (2) of the Act). Under section 3, sub-section (4) of the Act, however, a Government proclamation bringing into force the special powers of detention may be annulled at any time by a simple resolution of the Lower House of the Irish Parliament. Moreover, under section 9 of the Act both Houses of Parliament must be kept fully informed, at regular intervals, of the manner in which the powers of detention have been exercised. 12. The powers of detention referred to in the Act are vested in Ministers of State. Section 4 of the Act provides as follows: "(1) Whenever a Minister of State is of opinion that any particular person is engaged in activities which, in his opinion, are prejudicial to the preservation of public peace and order or to the security of the State, such Minister may by warrant under his hand and sealed with his official seal order the arrest and detention of such person under this section. (2) Any member of the Gárda Síochána may arrest without warrant any person in respect of whom a warrant has been issued by a Minister of State under the foregoing sub-section of this section. (3) Every person arrested under the next preceding sub-section of this section shall be detained in a prison or other place prescribed in that behalf by regulations made under this Part of this Act until this Part of this Act ceases to be in force or until he is released under the subsequent provisions of this Part of this Act, whichever first happens. (4) Whenever a person is detained under this section, there shall be furnished to such person, as soon as may be after he arrives at a prison or other place of detention prescribed in that behalf by regulations made under this Part of this Act, a copy of the warrant issued under this section in relation to such person and of the provisions of section 8 of this Act". 13. Under section 8 of the Offences against the State (Amendment) Act, 1940, the Government is required to set up, as soon as conveniently may be after the entry into force of the powers of detention without trial, a Commission (hereinafter referred to as "Detention Commission") to which any person arrested or detained under the Act may apply, through the Government, to have his case considered. The Commission is to consist of three persons, appointed by the Government, one to be a commissioned officer of the Defence Forces with not less than seven years'service and each of the others to be a barrister or solicitor of not less than seven years'standing or a judge or former judge of one of the ordinary courts. Lastly, section 8 of the Act provides that, if the Commission reports that no reasonable grounds exist for the continued detention of the person concerned, such person shall, with all convenient speed, be released. IV 14. After several years during which there was very little IRA activity, there was a renewed outbreak in 1954 and again in the second half of 1956. In the second half of December 1956 armed attacks were made on a number of Northern Ireland police barracks and at the end of the month a policeman was killed. In the same month a police patrol on border roads was fired on, trees were felled across roads and telephone wires cut, etc. In January 1957 there were more incidents of the same kind. At the beginning of the month there was an armed attack on Brookeborough Police Barracks during which two of the assailants were killed; both of them came from the 26-county area. Twelve others, of whom four were wounded, fled across the border and were arrested by the police of the Republic of Ireland. Thereupon, the Prime Minister of the Republic of Ireland, in a public broadcast address on 6th January 1957, made a pressing appeal to the public to put an end to these attacks. Six days after this broadcast, namely, on 12th January 1957, the IRA carried out an armed raid on an explosives store in the territory of the Republic of Ireland, situated at Moortown, County Dublin, for the purpose of stealing explosives. On 6th May 1957, armed groups entered an explosives store at Swan Laois, held up the watchman and stole a quantity of explosives. On 18th April 1957, the main railway line from Dublin to Belfast was closed by an explosion which caused extensive damage to the railway bridge at Ayallogue in County Armagh, about 5 miles on the northern side of the border. During the night of 25th-26th April, three explosions between Lurgan and Portadown, in Northern Ireland, also damaged the same railway line. On the night of 3rd/4th July a Northern Ireland police patrol on duty a short distance from the border was ambushed. One policeman was shot dead and another injured. At the scene of the ambush 87 sticks of gelignite were found to have been placed on the road and covered with stones, with wires leading to a detonator. This incident occurred only eight days before the annual Orange Processions which are widespread throughout Northern Ireland on 12th July. In the past, this date has been particularly critical for the maintenance of peace and public order. V 15. The special powers of arrest and detention conferred upon the Ministers of State by the 1940 (Amendment) Act were brought into force on 8th July 1957 by a Proclamation of the Irish Government published in the Official Gazette on 5th July 1957. On 16th July 1957, the Government set up the Detention Commission provided for in section 8 of that Act and appointed as members of that Commission an officer of Defence Forces, a judge and a district Justice. 16. The Proclamation by which the Irish Government brought into force on 8th July 1957 the special powers of detention provided for in Part II of the 1940 Act (No. 2) read as follows: "The Government, in exercise of the powers conferred on them by sub-section (2) of section 3 of the Offences against the State (Amendment) Act, 1940, (No. 2 of 1940), hereby declare that the powers conferred by Part II of the said Act are necessary to secure the preservation of public peace and order and that it is expedient that the said part of the said Act should come into force immediately." 17. By letter of 20th July 1957 the Irish Minister for External Affairs informed the Secretary-General of the Council of Europe that Part II of the Offences against the State Act, 1940 (No. 2) had come into force on 8th July 1957. Paragraph 2 of that letter read as follows: "... Insofar as the bringing into operation of Part II of the Act, which confers special powers of arrest and detention, may involve any derogation from the obligations imposed by the Convention for the Protection of Human Rights and Fundamental Freedoms, I have the honour to request you to be good enough to regard this letter as informing you accordingly, in compliance with Article 15 (3) (art. 15-3) of the Convention." The letter pointed out that the detention of persons under the Act was considered necessary "to prevent the commission of offences against public peace and order and to prevent the maintaining of military or armed forces other than those authorised by the Constitution." The Secretary-General's attention was called to section 8 of the Act which provides for the establishment of a Commission to which any detained person can appeal. This Commission was set up on 16th July 1957. 18. Soon after the publication of the Proclamation of 5th July 1957 bringing into force the powers of detention provided for under the 1940 Act, the Prime Minister of the Government of the Republic of Ireland announced that the Government would release any person held under that Act who undertook "to respect the Constitution and the laws of Ireland" and "to refrain from being a member of or assisting any organisation declared unlawful under the Offences against the State Act, 1939". VI 19. G.R. Lawless was first arrested with three other men on 21st September 1956 in a disused barn at Keshcarrigan, County Leitrim. The police discovered in the barn a Thompson machine-gun, six army rifles, six sporting guns, a revolver, an automatic pistol and 400 magazines. Lawless admitted that he was a member of the IRA and that he had taken part in an armed raid when guns and revolvers had been stolen. He was subsequently charged on 18th October with unlawful possession of firearms under the Firearms Act, 1935 and under Section 21 of the Offences against the State Act, 1939. G.R. Lawless, together with the other accused, was sent forward for trial to the Dublin Circuit Criminal Court. On 23rd November 1956, they were acquitted of the charge of unlawful possession of arms. The trial judge had directed the jury that the requirements for proving the accussed's guilt had not been satisfied in that it not been conclusively shown that no competent authority had issued a firearm certificate authorising him to be in possession of the arms concerned. At the hearing before this Court on 26th October, the District Justice asked one of the accused, Sean Geraghty, whether he wished to put any questions to any of the policemen present. Sean Geraghty replied as follows: "As a soldier of the Irish Republican Army and as leader of these men, I do not wish to have any part in proceedings in this Court." When asked by the Justice whether he pleaded guilty or not guilty to the charge, he again said: "On behalf of my comrades and myself I wish to state that any arms and ammunition found on us were to be used against the British Forces of occupation to bring about the re-unification of our country and no Irishman or woman of any political persuasion had anything to fear from us. We hold that it is legal to possess arms and also believe it is the duty of every Irishman to bear arms in defence of his country." Subsequently, G.R. Lawless in reply to a question by the Justice said: "Sean Geraghty spoke for me." Lawless was again arrested in Dublin on 14th May 1957 under section 30 of the 1939 Act, on suspicion of engaging in unlawful activities. A sketch map for an attack of certain frontier posts between the Irish Republic and Northern Ireland was found on him bearing the inscription "Infiltrate, annihilate and destroy." On the same day his house was searched by the police who found a manuscript document on guerrilla warfare containing, inter alia, the following statements: "The resistance movement is the armed vanguard of the Irish people fighting for the freedom of Ireland. The strength of the movement consists in the popular patriotic character of the movement. The basic mission of local resistance units are the destruction of enemy installations and establishments that is TA halls, special huts, BA recruiting offices, border huts, depots, etc. Attacks against enemy aerodromes and the destruction of aircraft hangars, depots of bombs and fuel, the killing of key flying personnel and mechanics, the killing or capture of high-ranking enemy officers and high officials of the enemy's colonial Government and traitors to our country in their pay, that is, British officers, police agents, touts, judges, high members of the Quisling party, etc." After being arrested, G.R. Lawless was charged: (a) with possession of incriminating documents contrary to section 12 of the 1939 Act; (b) with membership of an unlawful organisation, the IRA, contrary to section 21 of the 1939 Act. On 16th May 1957, G.R. Lawless was brought before the Dublin District Court together with three other men who were also charged with similar offences under the 1939 Act. The Court convicted Lawless on the first charge and sentenced him to one month's imprisonment; it acquitted him on the second charge. The Court record showed that the second charge was dismissed "on the merits" of the case but no official report of the proceedings appears to be available. The reasons for this acquittal were not clearly established. G.R. Lawless was released on about 16th June 1957, after having served his sentence in Mountjoy Prison, Dublin. 20. G.R. Lawless was re-arrested on 11th July 1957 at Dun Laoghaire by Security Officer Connor when about to embark on a ship for England. He was detained for 24 hours at Bridewell Police Station in Dublin under section 30 of the 1939 Act, as being a suspected member of an unlawful organisation, namely the IRA. Detective-Inspector McMahon told the Applicant on the same day that he would be released provided that he signed an undertaking in regard to his future conduct. No written form of the undertaking proposed was put to G.R. Lawless and its exact terms are in dispute. On 12th July 1957, the Chief Superintendent of Police, acting under section 30, sub-section 3 of the 1939 Act, made an order that G.R. Lawless be detained for a further period of 24 hours expiring at 7.45 p.m. on 13th July 1957. At 6 a.m. on 13th July 1957, however, before Lawless'detention under section 30 of the 1939 Act had expired, he was removed from the Bridewell Police Station and transferred to the military prison in the Curragh, Co. Kildare (known as the "Glass House"). He arrived there at 8 a.m. on the same day and was detained from that time under an order made on 12th July 1957 by the Minister for Justice under section 4 of the 1940 Act. Upon his arrival at the "Glass House", he was handed a copy of the above-mentioned detention order in which the Minister for Justice declared that G.R. Lawless was, in his opinion, engaged in activities prejudicial to the security of the State and he ordered his arrest and detention under section 40 of the 1940 Act. From the "Glass House", G.R. Lawless was transferred on 17th July 1957 to a camp known as the "Curragh Internment Camp", which forms part of the Curragh Military Camp and Barracks in County Kildare, and together with some 120 other persons, was detained there without charge or trial until 11th December 1957 when he was released. 21. On 16th August 1957 G.R. Lawless was informed that he would be released provided he gave an undertaking in writing "to respect the Constitution and laws of Ireland" and not to "be a member of or assist any organisation which is an unlawful organisation under the Offences against the State Act, 1939." G.R. Lawless declined to give this undertaking. 22. On 8th September 1957 G.R. Lawless exercised the right, conferred upon him by section 8 of the 1940 Act, to apply to have the continuation of his detention considered by the Detention Commission set up under the same section of that Act. He appeared before that Commission on 17th September 1957 and was represented by counsel and solicitors. The Detention Commission, sitting for the first time, adopted certain rules of procedure and adjourned until 20th September. 23. On 18th September 1957, however, G.R. Lawless'counsel also made an application to the Irish High Court, under Article 40 of the Irish Constitution, for a Conditional Order of habeas corpus ad subjiciendum. The object of the application was that the Court should order the Commandant of the detention camp to bring G.R. Lawless before the Court in order that it might examine and decide upon the validity of detention. A Conditional Order of habeas corpus would have the effect of requiring the Commandant to "show cause" to the High Court why he should not comply with that Order. The Conditional Order was granted on the same date and was served on the Commandant giving him a period of four days to "show cause". It was also served upon the Detention Commission. The Detention Commission sat on 20th September 1957, and decided to adjourn the hearing sine die pending the outcome of the habeas corpus application. 24. G.R. Lawless then applied, by a motion to the High Court, to have the Conditional Order made "absolute", notwithstanding the fact that the Commandant of the Detention Camp had in the meantime "shown cause" opposing this application. The Commandant had, in this connection, relied upon the order for the Applicant's detention which had been made by the Minister for Justice. The High Court sat from 8th to 11th October 1957 and heard full legal submissions by counsel for both parties. On 11th October it gave judgment allowing the "cause shown" by the camp Commandant to justify detention. The habeas corpus application was therefore dismissed. 25. On 14th October 1957 G.R. Lawless appealed to the Supreme Court, invoking not only the Constitution and laws of Ireland but also the European Convention of Human Rights. On 6th November the Supreme Court dismissed G.R. Lawless'appeal. It gave its reasoned judgment on 3rd December 1957. The main grounds of the Supreme Court's judgment were as follows: (a) The 1940 Act, when in draft form as a Bill, had been referred to the Supreme Court for decision as to whether it was repugnant to the Irish Constitution. The Supreme Court had decided that it was not repugnant and Article 34 (3) 3 of the Constitution declared that no court had competence to question the constitutional validity of a law which had been approved as a Bill by the Supreme Court. (b) The Oireachtas (i.e. the Parliament) which was the sole legislative authority had not introduced legislation to make the Convention of Human Rights part of the municipal law of Ireland. The Supreme Court could not, therefore, give effect to the Convention if it should appear to grant rights other than, or supplementary to, those provided under Irish municipal law. (c) The appellant's period of detention under section 30 of the 1939 Act was due to expire at 7.45 p.m. on 13th July 1957. At that time he was already being detained under another warrant issued by the Minister for Justice and his detention without release was quite properly continued under the second warrant. (d) The appellant had not established a prima facie case in regard to his allegation that he had not been told the reason for his arrest under the Minister's warrant. An invalidity in the arrest, even if established, would not, however, have rendered his subsequent detention unlawful whatever rights it might otherwise have given the appellant under Irish law. (e) The Court had already decided, when considering the 1940 Act as a Bill, that it had no power to question the opinion of a Minister who issued a warrant for detention under section 4 of that Act. (f) The appellant in the habeas corpus proceedings before the High Court had challenged the legality of the constitution of the Detention Commission. Even if it was shown that the Commission's rulings on various procedural matters were wrong, that would not make the appellant's detention unlawful nor would it provide a basis for an application for habeas corpus. Section 8 of the 1940 Act showed that the Commission was not a court and an application before it was not a form of proceedings but no more than an enquiry of an administrative character. 26. Meanwhile, on 8th November 1957 - that is two days after the announcement of the Supreme Court's rejection of his appeal - G.R. Lawless had introduced his Application before the European Commission of Human Rights, alleging that his arrest and detention under the 1940 Act, without charge or trial, violated the Convention and he claimed: (a) immediate release from detention; (b) payment of compensation and damages for his detention; and (c) payment of all the costs and expenses of, and incidental to the proceedings instituted by him in the Irish courts and before the Commission to secure his release. 27. Shortly afterwards the Detention Commission resumed its consideration of the case of G.R. Lawless under section 8 of the 1940 Act and held hearings for that purpose on 6th and 10th December 1957. On the latter date, at the invitation of the Attorney-General, G.R. Lawless in person before the Detention Commission gave a verbal undertaking that he would not "engage in any illegal activities under the Offences against the State Acts, 1939 and 1940", and on the following day an order was made by the Minister for Justice, under section 6 of the 1940 Act, releasing the Applicant from detention. 28. The release of G.R. Lawless from detention was notified to the European Commission of Human Rights by his solicitor in a letter dated 16th December 1957. The letter at the same time stated that G.R. Lawless intended to continue the proceedings before the Commission with regard to (a) the claim for compensation and damages for his detention and (b) the claim for reimbursement of all costs and expenses in connection with the proceedings undertaken to obtain his release. VII 29. At the written and oral proceedings before the Court, the European Commission of Human Rights and the Irish Government made the following submissions: The Commission, in its Memorial of 27th June 1960 : "May it please the Court to take into consideration the findings of the Commission in its Report on the case of Gerard Richard Lawless and (1) to decide: (a) whether or not the detention of the Applicant without trial from 13th July to 11th December 1957 under section 4 of the Offences against the State (Amendment) Act, 1940, was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention; (b) whether or not such detention was in conflict with the obligations of the Respondent Government under Article 7 (art. 7) of the Convention; (2) if such detention was in conflict with the obligations of the Respondent Government under Articles 5 and 6 (art. 5, art. 6) of the Convention, to decide: (a) whether or not the Government's letter to the Secretary-General of 20th July 1957 was a sufficient communication for the purposes of Article 15, paragraph (3) (art. 15-3) of the Convention; (b) whether or not, from 13th July to 11th December 1957, there existed a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1) of the Convention; (c) if such an emergency did exist during that period, whether or not the measure of detaining persons without trial under section 4 of the 1940 Act, as it was applied by the Government, was a measure strictly required by the exigencies of the situation; (3) to decide whether or not the Applicant is, in any event, precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7); (4) in the light of its decisions on the questions in paragraphs 1-3 of these submissions, to adjudge and declare: (a) whether or not the facts disclose any breach by the Respondent Government of its obligations under the Convention; (b) if so, what compensation, if any, is due to the Applicant in respect of the breach." 30. The Agent of the Irish Government, at the public hearing on 10th April 1961 : "May it please the Court to decide and declare that the answers to the questions contained in paragraph 58 of the Commission's Memorial of 27th June 1960 are as follows: 1. (a) That the detention of the Applicant was not in conflict with the obligations of the Government under Articles 5 and 6 (art. 5, art. 6) of the Convention. (b) That such detention was not in conflict with the obligations of the Government under Article 7 (art. 7) of the Convention. 2. (a) That the Government's letter of 20th July 1957 was a sufficient communication for the purposes of paragraph (3) of Article 15 (art. 15-3) of the Convention or, alternatively, that in the present case, the Government are not by any of the provisions of the said paragraph (3) (art. 15-3) deprived from relying on paragraph (1) of Article 15 (art. 15-1). (b) That from 13th July 1957 to 11th December 1957 there did exist a public emergency threatening the life of the nation, within the meaning of Article 15, paragraph (1) (art. 15-1), of the Convention. (c) That the measure of detaining persons without trial, as it was applied by the Government, was a measure strictly required by the exigencies of the situation. 3. That the Applicant is in any event precluded by Article 17 (art. 17) of the Convention from invoking the provisions of Articles 5, 6 and 7 (art. 5, art. 6, art. 7) of the Convention. 4. (a) That the facts do not disclose any breach by the Government of their obligations under the Convention. (b) That, by reason of the foregoing, no question of compensation arises." | The applicant had argued, among other things, that even if the situation in Northern Ireland in 1957 had been such as to justify derogation from obligations under the Convention, the bringing into operation and the enforcement of Part II of the Offences against the State (Amendment) Act 1940 were disproportionate to the strict requirements of the situation. The Irish Government had argued that the measures taken under Part II of the 1940 Act were, in the circumstances, strictly required by the exigencies of the situation in accordance with Article 15 § 1 of the Convention. |
857 | Interception of communications, phone tapping and secret surveillance | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1977 and lives in Kranj. A. The investigation 6. In 2006 the Swiss law - enforcement authorities of the Canton of Valais conducted a monitoring exercise of users of the so-called “Razorback” network. The Swiss police established that some of the users owned and exchanged child pornography in the form of pictures or videos. Files containing illegal content were exchanged through the so-called “p2p” (peer-to-peer) file - sharing network in which each of the connected computers acted as both a client and a server. Hence, each user could access all files made available for sharing by other users of the network and download them for his or her use. Among the dynamic Internet Protocol (“IP”) addresses recorded by the Swiss police was also a certain dynamic IP address, which was later linked to the applicant. 7. Based on the data obtained by the Swiss police, on 7 August 2006 the Slovenian police, without obtaining a court order, requested company S., a Slovenian Internet service provider (hereinafter “the ISP”), to disclose data regarding the user to whom the above -mentioned IP address had been assigned at 1.28 p.m. on 20 February 2006. The police based their request on section 149b(3) of the Criminal Procedure Act (hereinafter “the CPA”, see paragraph 36 below ), which required the operators of electronic communication networks to disclose to the police information on the owners or users of certain means of electronic communication whose details were not available in the relevant directory. In response, on 10 August 2006 the ISP gave the police the name and address of the applicant ’ s father, who was a subscriber to the Internet service relating to the respective IP address. 8. On 12 December 2006 the police proposed that the Kranj District State Prosecutor ’ s Office request the investigating judge of the Kranj District Court to issue an order demanding that the ISP disclose both the personal data of the subscriber and traffic data linked to the IP address in question. On 14 December 2006 such a court order was obtained on the basis of section 149b(1) of the CPA and the ISP gave the police the required data. 9. On 12 January 2007 the investigating judge of the Kranj District Court issued an order to carry out a house search of the applicant ’ s family home. The order indicated the applicant ’ s father as the suspect. During the house search the police and the investigating judge of the Kranj District Court seized four computers and later made copies of their hard disks. 10. Based on a conversation with the applicant ’ s family members, of which no record is available, the police changed the suspect to the applicant. 11. Reviewing the hard disks, the police found that one of them contained files with pornographic material involving minors. The police established that the applicant had installed eMule, a file - sharing program, on one of the computers by means of which he had been able to download different files from other users of the program and had also automatically offered and distributed his own files to them. Among the files downloaded by the applicant, a small percentage had contained child pornography. 12. On 26 November 2007 the Kranj District prosecutor requested that a judicial investigation be opened against the applicant. 13. In his defence before the investigating judge, the applicant argued, inter alia, that he had not been aware of the content of the files in question. He also argued that the ISP had unlawfully, without a judicial warrant, passed his data, including his address, to the police. 14. On 5 March 2008 the investigating judge of the Kranj District Court, opened a judicial investigation against the applicant on the basis of a reasonable suspicion that he had committed the criminal offence of displaying, manufacturing, possessing and distributing pornographic material under section 187(3) of the Criminal Code. The judge noted, among other things, that the applicant ’ s father had been the holder of the identified IP address and that the applicant had allegedly been logging into the respective program under the name of “Benet ”. 15. On 17 March 2008 the applicant ’ s counsel lodged an appeal against the decision to open a judicial investigation. He argued, inter alia, that the evidence concerning the identity of the user of the respective IP address had been obtained unlawfully. That information concerned the traffic data and should therefore not have been obtained without a judicial warrant. 16. On 21 March 2008 an interlocutory panel of the court rejected the appeal finding that, although counsel had argued that the identity of the user of the IP address had been obtained unlawfully, he had not requested that certain documents be excluded from the file. B. The trial 17. On 29 May 2008, the Kranj District State Prosecutor ’ s Office lodged an indictment against the applicant for the above-mentioned criminal offence. 18. At the hearing of 8 October 2008 the applicant lodged a written request for exclusion of evidence obtained unlawfully, including the information concerning the user of the respective IP address obtained without a court order. 19. On 5 December 2008 the court rejected the applicant ’ s request, finding that the data concerning the user of the respective IP address had been obtained in compliance with section 149b(3) of the CPA. 20. On 5 December 2008 the Kranj District Court found the applicant guilty of the criminal offence with which he had been charged. Based on the opinion of an expert in computer science, the District Court held that the applicant must have been aware of the 630 pornographic pictures and 199 videos involving minors which he had downloaded through p2p networks and made available for sharing with other users. The applicant was sentenced to a suspended prison term of eight months with a probation period of two years. C. Proceedings before the Ljubljana Higher Court 21. Both the applicant and the district state prosecutor appealed against the first-instance judgment. The applicant challenged the facts as established by the District Court. He also alleged that the subscriber information the Slovenian police had acquired without a court order, and thus unlawfully, should have been excluded as evidence. Consequently, all the evidence based on such unlawfully acquired data should also have been excluded. 22. On 4 November 2009 the Ljubljana Higher Court granted the appeal of the district state prosecutor in part, converting the applicant ’ s suspended sentence into a prison term of six months. The applicant ’ s appeal was dismissed as unfounded. The Higher Court confirmed that the first-instance court had correctly established the facts of the case; moreover, it held that the data concerning the user of the IP address had been obtained lawfully, as no court order was required for such a purpose. D. Proceedings before the Supreme Court 23. The applicant lodged an appeal on points of law before the Supreme Court, reiterating that a dynamic IP address could not be compared to a telephone number which was not entered in a telephone directory, as a new IP address was assigned to a computer each time the user logged on. Accordingly, such data should be considered as traffic data constituting circumstances and facts connected to the electronic communication and attracting the protection of privacy of communication. The applicant argued that the Swiss police should not have obtained the respective dynamic IP address without a court order, and nor should the Slovenian police have obtained the data on the identity of the subscriber associated with the IP address without such an order. 24. On 20 January 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law, reasoning that given the general accessibility of websites and the fact that the Swiss police could check the exchanges in the p2p network simply by monitoring the users sharing certain contents, that is without any particular intervention in internet traffic, such communication could not be considered private and thus protected by Article 37 of the Constitution. Moreover, in the Supreme Court ’ s view, the Slovenian police had not acquired traffic data about the applicant ’ s electronic communication, but only data regarding the user of a particular computer through which the Internet had been accessed. E. Proceedings before the Constitutional Court 25. The applicant lodged a constitutional complaint before the Constitutional Court, reiterating the complaints adduced before the lower courts. 26. The Constitutional Court asked the Information Commissioner to express her position on the issue. The Information Commissioner was of the view that the reason for obtaining the identity of an individual user of electronic communication was precisely that he or she communicated by means of more or less publicly accessible websites. In the Information Commissioner ’ s view, it was impossible to separate traffic data from subscriber data, as traffic data alone did not make any sense if one did not ascertain who the person behind those data was – this latter information was thus considered to be an extremely important element of communication privacy. The Information Commissioner also highlighted that the provisions of the Electronic Communications Act in force at the material time required a court order regarding all data related to electronic communications, irrespective of whether they related to traffic or identification data. In the Information Commissioner ’ s view, section 149b (3) of the CPA, which required only a written request from the police to obtain data on who was communicating, was constitutionally problematic. 27. On 13 February 2014 the Constitutional Court dismissed the applicant ’ s complaint, holding that his constitutional rights had not been violated. The Constitutional Court ’ s decision was adopted by seven votes to two. Judge J. Sovdat and Judge D. Jadek Pensa wrote dissenting opinions. The decision was served on the applicant on 11 March 20 1 4. 1. The Constitutional Court ’ s decision 28. The Constitutional Court pointed out, at the outset, that in addition to the content of communications, Article 37 of the Constitution also protected traffic data, that is any data processed for the transmission of communications in an electronic communications network. It considered that IP addresses were included in such traffic data. The Constitutional Court, however, concluded that the applicant, who had not hidden in any way the IP address through which he had accessed the Internet, had consciously exposed himself to the public and could not legitimately have expected privacy. As a result, the data concerning the identity of the user of the IP address were not protected as communication privacy under Article 37 of the Constitution, but only as information privacy under Article 3 8 of the Constitution, and no court order was required in order to disclose them in the applicant ’ s case. 29. The most relevant parts of the Constitutional Court ’ s decision are as follows (as translated into English on the Constitutional Court ’ s website): “ Review of the objections regarding access to the complainant ’ s IP address by the Swiss police 11. The second paragraph of Article 37 of the Constitution provides a higher level of protection than Article 8 of the ECHR as it requires a court order for any interference with the right to communication privacy ... The right to communication privacy determined by the first paragraph of Article 37 of the Constitution primarily protects the content of the communicated message. ... In addition to the message content, the circumstances and facts related to the communication are also protected. In accordance with this view, in Decision No. Up-106/05, dated 2 October 2008 (Official Gazette RS, No. 100/08, and OdlUS XVII, 84) the Constitutional Court extended the protection provided by Article 37 of the Constitution also to such data regarding telephone calls that by their nature constitute an integral part of communication so that such data cannot be obtained without a court order. The mentioned Decision refers otherwise to telephone communication, but the same conclusion can be applied mutatis mutandis to other types of communication at a distance. The crucial constitutional review test for the review of the Constitutional Court whether a particular communication is protected under Article 37 of the Constitution is the test of the legitimate expectation of privacy. 12. Communication via the internet takes place, in principle, in an anonymous form, which is essential for the free development of personality, freedom of speech, and the expression of ideas, and, consequently, for the development of a free and democratic society. The privacy of communication protected by the strict conditions determined by the second paragraph of Article 37 of the Constitution is therefore a very important human right that is becoming increasingly important due to technological advances and the related growing possibilities of monitoring. It entails individuals ’ legitimate expectation that the state will leave them alone also in their communication through modern communication channels and that they do not necessary have to defend themselves for what they do, say, write or think. If there is a suspicion of a criminal offense the Police must have the ability to identify the individuals who have participated in a certain communication related to an alleged criminal offense, because the perpetrators are harder to trace due to this principle of anonymity on the internet. The conditions under which the Police can carry out investigative actions and whether they need a court order, however, depend on whether such entail an interference with the right to communication privacy. 13. As was pointed out above, in addition to the content of communications, Article 37 of the Constitution also protects traffic data. Traffic data signifies any data processed for the transmission of communications in an electronic communications network or for the billing thereof. Such entails that the IP address is a traffic datum. The Constitutional Court must therefore answer the question whether the complainant legitimately expected privacy regarding this datum. 14. Two factors must be weighed in relation to this review: the expectation of privacy regarding the IP address and the legitimacy of this expectation, where the latter must be of such nature that the society is willing to accept it as legitimate. The complainant in the case at issue communicated with other users of the Razorback network by using the eMule application to exchange various files, including those that contained child pornography. With regard to the general anonymity of internet users and also the content of the files, the Constitutional Court has no doubt that the complainant expected that his communications would remain private, and he also certainly expected that his identity would not be disclosed. The question therefore is whether such expectation of privacy was legitimate. The complainant has not established that the IP address through which he accessed the internet was hidden in any way, and thus invisible to other users, or that access to the Razorback network (and thus to the content of the files) was in any way restricted, for example by passwords or other means. ... In contrast, in the complainant ’ s case anyone interested in exchanging such data could have accessed the contested files, and the complainant has not demonstrated that his IP address was in any way concealed or inaccessible by other users of this network. This leads to the conclusion that this entailed an open line of communication with a previously undetermined circle of strangers using the internet worldwide who have shown interest in sharing certain files, while at the same time access to the IP addresses of other users was not limited to users of this network. Therefore, in the view of the Constitutional Court, the complainant ’ s expectation of privacy was not legitimate; that which a person knowingly exposes to the public, even if from a home computer and the shelter of his or her own home, cannot be a subject of the protection afforded by Article 37 of the Constitution. In view of the foregoing, the contested standpoint of the Supreme Court does not raise concerns regarding constitutional law. Obtaining the data regarding the complainant ’ s dynamic IP address does not interfere with his right to communication privacy determined by the first paragraph of Article 37 of the Constitution taking into account all the circumstances of the case, therefore a court order was not necessary to access it. By his conduct the complainant himself waived his right to privacy and therefore could not have a legitimate expectation of privacy therewith. ... Review of the objections regarding access to data on the user of a certain IP address 16. The complainant also challenges the standpoint of the Supreme Court that by its request to the service provider under the third paragraph of Article 149.b of the CPA the Police did not acquire traffic data, but only data regarding a particular user of a determined means of communication ... 17. In the case at issue, on 7 June 2006, on the basis of the third paragraph of Article 149.b of the CPA, the Police sent a request to the service provider for data regarding the user to whom IP address 195.210.223.200 was assigned on 20 February 2006 at 13:28. In the response, they received data regarding the user ’ s name, surname, and address, while the time of the communication set to the nearest second was already known. Then on 14 December 2006 the Police also obtained an order issued by the investigating judge on the basis of the first paragraph 149.b of the CPA and the service provider also provided the traffic data on the basis of this order. The main issue for the Constitutional Court at this point is therefore whether obtaining the data regarding the identity of the user of a determined IP address falls within the framework of communication privacy. 18. In accordance with the position of the Constitutional Court in Decision No. Up-106/05, Article 37 of the Constitution also protects traffic data, i.e. data regarding, for example, who, when, with whom, and how often someone communicated. The identity of the communicating individual is one of the important aspects of communication privacy, therefore it is necessary to obtain a court order for its disclosure in accordance with the second paragraph of Article 37 of the Constitution. Despite this standpoint, the Constitutional Court decided that the complainant ’ s allegation of a violation of Article 37 of the Constitution is unfounded in the case at issue. By his conduct, the complainant has himself waived protection of his privacy by publicly revealing both his own IP address as well as the content of his communications, and therefore can no longer rely on it as regards the disclosure of his identity. Since by such he also waived the legitimate expectation of privacy, the data regarding the identity of the IP address user no longer enjoyed protection in terms of communication privacy, but only in terms of information privacy determined by Article 38 of the Constitution. Therefore, by obtaining the data on the name, surname, and address of the user of the dynamic IP address through which the complainant communicated the Police did not interfere with his communication privacy and therefore did not require a court order to disclose his identity. In view of the foregoing, the contested position of the Supreme Court is not inconsistent with Article 37 of the Constitution, and the complainant ’ s complaints in this part are unfounded. ” 2. Dissenting opinion by Judge J. Sovdat 30. Judge J. Sovdat welcomed the Constitutional Court ’ s departure from the Supreme Court ’ s view that the information concerned had not amounted to traffic data. However, in her view, the police wishing to obtain identification of the subscriber should have requested a court order. She pointed out that the Constitutional Court ’ s conclusion implied that the protection of privacy of traffic data was always dependent on the protection of the content of communication. Accordingly, traffic data concerning certain communication were protected as long as the content of that communication was protected. Consequently, an individual could not enjoy separate and independent protection of traffic data. Judge Sovdat disagreed with this view, pointing out that the applicant had not appeared in public under his own name, but only through the digits of his dynamic IP address. 31. Judge Sovdat agreed with the Information Commissioner that the police had been interested not in the ownership of the device but in “the identity of the person communicating and precisely because he had been communicating”. She endorsed the Commissioner ’ s view that “the content of communication alone did not have any particular weight in the absence of identification of those communicating”. She also pointed out that under sections 166 and 168 of the new Electronic Communications Act (“ ECA -1”, see paragraph 39 below ), the Internet provider was not allowed to transfer the stored information without a court order. Compared with section 14 9 b(3) of the CPA, the ECA was definitely more recent and therefore the decision of the majority ran contrary to the level of rights protection already achieved. 3. Dissenting opinion by Judge D. Jadek Pensa 32. Judge D. Jadek Pensa argued that the constitutional guarantees set out in Article 37 of the Constitution were aimed at strengthening the expectation of privacy in this area of life and preventing disproportionate interferences and an abuse of power by the executive. 33. As regards the applicant ’ s expectation of online anonymity, Judge Jadek Pensa argued that none of the data publicly disclosed by the complainant revealed his identity. In her view, anonymity was what prevented the police from linking a particular communication with a particular person – that is, linking a dynamic IP address and an individual with his or her name and address. She further argued that the question whether the applicant ’ s manner of communication could lead to the conclusion that his expectation of privacy had not been objectively justified had to be approached by taking all the circumstances into account, including the law that had been in force at the relevant time. She explained that the ECA (sections 103(1(2)), 104(1) and 107 – see paragraphs 37 below ) required Internet providers to delete traffic data as soon as they were no longer needed for the transfer of messages. Moreover, section 1 0 7 of the ECA provided that the secrecy of communication could be interfered with only on the basis of a decision by a competent authority. A letter from the police to an Internet provider could not be considered to amount to such a decision. Thus, even if section 149b(3) of the CPA could be interpreted as allowing the police to ask for information on an Internet subscriber, it should not apply in the situations covered by the ECA, which explicitly concerned the “protection of secrecy and confidentiality of electronic communications”. Otherwise, the legislation would be contradictory. The judge concluded that the applicable legal framework could not therefore have led to the conclusion that the applicant, as a reasonably and sufficiently informed individual, could not have expected privacy; that is, he could not have expected that his anonymity would be protected. 34. Judge Jadek Pensa went on to elaborate on the neutrality of traffic data, such as data on the user of a certain dynamic IP address: “ 9. The traffic datum – the dynamic IP address that was assigned randomly at a given moment – as I understand it, reveals how the internet was used on some computer, because it is inextricably attached to a specific connection. ... This is because only the two data jointly communicate how the internet was used in a non-anonymised way, i.e. regarding internet use in connection with an identified person. This essential circumstance in my opinion negates the notion of the neutrality of the datum regarding a specific user of services for a certain (known) dynamic IP address that the police sought through the service provider - namely, the neutrality of the datum in terms of denying its ability to communicate anything more than the name and address of a certain person (who has a subscription contract with the service provider). Precisely because this datum is inseparably linked to a specific communication, the traffic datum falls within the scope of protected communication privacy. 10. Even if the service provider communicated to the police ‘ only ’ the data identifying a person who had a subscription contract with it, by doing so, as I understand it, the service provider in fact communicated (to put it simply) traffic data in an electronic communications network regarding this person. The police also, as I have already explained, wanted to determine more than just the name and surname of a certain person who had concluded a contract. Since, as I understand it, they asked for traffic data associated with a particular person they would have to proceed according to the first paragraph of Article 149.b of the CPA and obtain an order from the investigating judge.” | This case concerned the Slovenian police’s failure to obtain a court order to access subscriber information associated with a dynamic IP address recorded by the Swiss law-enforcement authorities during their monitoring of users of a certain file-sharing network. This led to the applicant being identified after he had shared files over the network, including child pornography. |
770 | Confidentiality of personal information concerning health | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1975 and lives in the Cēsis District (Latvia). A. Background to the case 6. On 16 June 1997 the applicant gave birth in the Cēsis District Central Hospital (a municipal enterprise, hereinafter “ the Cēsis hospital ”). Caesarean section was used, with the applicant ’ s consent, because uterine rupture had occurred during labour. 7. In the course of that surgery the surgeon performed tubal ligation (surgical contraception) without the applicant ’ s consent. 8. On 4 February 200 5, after her attempt to achieve an out-of-court settlement with the hospital had failed, the applicant initiated civil proceedings against the hospital, seeking to recover damages for the unauthorised tubal ligation. In December of 2006 her claim was upheld and she was awarded compensation in the amount of 10,000 Latvian lati for the unlawful sterilisation. B. Assessment of the quality of health care provided to the applicant 9. On 19 February 2004 the director of the Cēsis hospital wrote to the Inspectorate of Quality Control for Medical Care and Fitness for Work ( hereinafter “the MADEKKI ” ), requesting it to “evaluate the treatment received by [the applicant] during childbirth in accordance with the legislation in force in 1997”. The MADEKKI initiated an administrative procedure on the following day. The administrative inquiry concerned the applicant ’ s health care and in particular the gynaecological and childbirth assistance she had been provided from 1996 to 2003. In the process of that inquiry the MADEKKI requested and received medical files from three different medical institutions, containing detailed information about the applicant ’ s health over that period. 10. In April 2004 M.Z., a MADEKKI staff member, telephoned the applicant and informed her of the on-going inquiry. M.Z. invited the applicant to comment on the case, which she declined to do, referring the MADEKKI to her legal representative, Ms Olsena, instead. During the conversation M.Z. allegedly admonished the applicant for wanting to sue the hospital for damages, and told her that she herself was to blame for her sterilisation. 11. On 7 May 2004 Ms Olsena asked the MADEKKI for information on the legal grounds for, and the factual circumstances of, the inquiry. 12. On 14 May 2004 the MADEKKI issued a report concerning the medical treatment given to the applicant during childbirth in 1997. The report contained medical details about the applicant of a particularly private and sensitive character. It concluded that no laws had been violated during the applicant ’ s antenatal care or during childbirth. A summary of the findings of the report was sent to the director of the Cēsis hospital on 21 May 2004. 13. On 18 May 2004 the MADEKKI answered Ms Olsena ’ s questions concerning the administrative inquiry, setting out its opinion on the legal basis for it and providing information on the steps that had been taken in the course of the inquiry. 14. The applicant ’ s representative lodged a claim with the Administrative District Court, alleging that the MADEKKI had initiated the inquiry unlawfully, since in essence its purpose had been to help the Cēsis hospital to gather evidence for the impending litigation, which was outside the MADEKKI ’ s remit. It was also alleged that the MADEKKI had acted unlawfully in requesting and receiving information about the applicant ’ s health, as it had violated the applicant ’ s right to respect for her private life. That right had been further violated when the MADEKKI unlawfully transferred the applicant ’ s data to the Cēsis hospital. Lastly, the court was requested to annul an administrative act – the MADEKKI ’ s report – since its findings were erroneous. Compensation in the amount of 500 Latvian lati was requested in respect of non-pecuniary damage. 15. On 12 May 2005 the Administrative District Court adopted a judgment by which it terminated the proceedings with regard to the request to annul the MADEKKI report, as in the court ’ s opinion the report did not create any specific rights or obligations for the applicant and thus could not be considered an administrative act, and dismissed the remainder of the application as ill- founded. 16. Counsel for the applicant appealed and on 16 June 2006 the Administrative Regional Court adopted a judgment by which it upheld in full the first - instance court ’ s judgment and endorsed that court ’ s reasoning, essentially equating the activities of the MADEKKI with the provision of health care, which, according to domestic law, was a legitimate reason for gathering personal data. 17. On 8 February 2007 the Senate of the Supreme Court dismissed an appeal on points of law lodged by the applicant, in which reference was made, inter alia, to Article 8 of the Convention and to the cases of Z v. Finland ( 25 February 1997, Reports of Judgments and Decisions 1997 ‑ I) and M.S. v. Sweden (27 August 1997, Reports of Judgments and Decisions 1997 ‑ IV). 18. The Senate agreed with the lower courts that the MADEKKI report could not be considered an administrative act. It further considered that this report was not an action of a public authority ( faktiskā rīcība ) and thus was not amenable to review in administrative courts. 19. It thus remained for the Senate to address the applicant ’ s claims that the MADEKKI ’ s actions in preparing the report had been unlawful. In this regard the Senate considered that the Medical Treatment Law gave the MADEKKI the right to examine the quality of medical care provided in medical institutions not only upon receiving a corresponding complaint from a patient but also when a request for such examination had been submitted by a medical institution, which had an obligation to protect the interests of the society so that, should any irregularities be found by the MADEKKI, they might be eliminated and their recurrence with respect to other patients avoided in the future. 20. The Senate agreed with the applicant that the processing of sensitive data concerning her constituted an interference with her rights guaranteed by, inter alia, Article 8 of the Convention. The Senate then went on to summarise the findings of the Strasbourg Court in the two cases invoked by the applicant, emphasising in particular that the Convention left to the States a wide margin of appreciation in balancing the confidentiality of medical data and the necessity to preserve patients ’ confidence in the medical profession and in the health services in general. 21. The Senate further held that both the Medical Treatment Law and the Personal Data Protection Law contained exceptions that permitted the MADEKKI to collect and process the otherwise confidential medical data. The former listed such exceptions explicitly (see paragraph 30 below), while the latter allowed processing of medical data for the purposes of medical treatment or the provision or administration of heath care services (see paragraph 2 8 below) or if processing of personal data was necessary for a system administrator to carry out his legal duties (see paragraph 2 9 below). The Senate continued as follows: “ according to [the law] the MADEKKI has a duty to control the quality of medical care. In order to carry out such control, the MADEKKI requires information about the patient and his care ”. 22. The Senate concluded as follows: “Taking into account the aforementioned, the [Senate] finds that restrictions to a person ’ s private life connected to gathering and processing of sensitive personal data are provided for by law. When regulating this question, the legislator has already assessed the aim and proportionality of such restrictions, as well as has provided for safeguards against unjustified disclosure of the above-mentioned data. Consequently [the applicant ’ s] argument that the Regional Court ought to have assessed the aim and proportionality of the restriction is unfounded. Additionally the [Senate] considers that the Regional Court has correctly interpreted and applied the above-mentioned legal provisions and has come to the correct conclusion that the MADEKKI, in order to carry out the control of the quality of medical care, which it is competent to do, had a right to receive and process [the applicant ’ s] sensitive data without asking for her consent and that the MADEKKI has acted within its sphere of competence and in accordance with the provisions of the law concerning the processing of sensitive personal data. The MADEKKI used the information it had collected about [the applicant] in order to carry out its functions, namely, to control the quality of the medical care provided to [the applicant], while to the Cēsis hospital it only handed over its conclusions concerning the legality of the doctors ’ actions, which did not contain [the applicant ’ s] sensitive data. ” 23. For these reasons the Senate decided to uphold the lower courts ’ decisions. | The applicant alleged that the collection of her personal medical data by a State agency without her consent had violated her right to respect for her private life. |
391 | Forced feeding of prisoners staging a hunger strike | 8. The applicant, Mr Evgen Nevmerzhitsky, is a Ukrainian national, who was born in Kyiv in 1970 and currently resides there. He was formerly the manager of a branch of the Poltava Bank in Kyiv. The applicant was represented by Mr Portyanik, a lawyer practising in Kyiv. I. THE CIRCUMSTANCES OF THE CASE 9. The facts of the case, as submitted by the parties, may be summarised as follows. A. The criminal proceedings brought against the applicant 10. On 28 September 1995 police officers seized 184,761 US dollars (USD) that had been stored by the applicant on the premises of the Poltava Bank in readiness for their sale to a customer, Y.G.L. 11. On 18 October 1995 the Investigative Division of the main department of the Ministry of Internal Affairs of Ukraine in Kyiv (“the Investigative Division”) began a criminal investigation into allegations of unlawful currency transactions that had allegedly been committed by the applicant. 12. On 8 April 1997 the Investigative Department initiated criminal proceedings in respect of the involvement of the applicant and other suspects in the case. On the same date an investigator from the division decided that the applicant should be detained as a suspect pending a decision concerning the appropriate preventive measure. He was accordingly placed in custody that day. 13. On 14 April 1997 an investigator from the Investigative Division charged the applicant with, inter alia, engaging in unlawful currency transactions (Article 80 § 2 of the Ukrainian Criminal Code 1960 – hereafter the “UCC”), theft of substantial amounts of currency (Article 86-1 of the UCC) and tax evasion (Article 148-5 § 2 of the UCC). 14. On 8 December 1997 and 2 March 1998 the applicant was additionally charged with abuse of power by an official (Articles 165 § 2 and 166 § 3 of the UCC) and fraud and forgery committed by an official (Articles 172 § 2 and 194 §§ 1 and 3 of the UCC). 15. Between 15 January and 14 April 1998 the applicant lodged applications with the Investigative Department for a medical examination and challenged the appointment of the investigator. On 7 April 1998 the General Prosecution Service of Ukraine instructed the investigator to arrange for the applicant's medical examination. The doctors who examined the applicant recommended that he should receive medical treatment in a facility run by the Ministry of Health due to various diseases that he suffered from, including the skin infections of scabies and eczema. 16. On 13 March 1998 the investigator charged the applicant with offences under Articles 80 § 2, 86-1, 148-5 § 2, 166 § 3, 170 § 1, 172 § 2 and 194 § 3 of the UCC. 17. On 8 September 1998 the investigation into the case was completed and the accused, including the applicant, were allowed to inspect the case-file. On 9 August 1999 the accused finished their inspection. 18. On 9 August 1999 the criminal case-file was sent to the Kyiv Prosecution Service for approval of the indictment. 19. On 13 August 1999 the prosecution service transmitted the case to the Kyiv City Court (the “City Court”). 20. On 27 August 1999 the Moskovsky District Court of Kyiv rejected as unsubstantiated the applicant's complaint against the investigator of the Investigative Department, in which he had claimed that the investigator had acted unlawfully and requested that criminal proceedings be instituted against him for abuse of power. 21. On 1 November 1999 the City Court remitted the case to the prosecution service for an additional investigation ( додаткове розслідування ). On 5 November 1999 it lodged a separate application ( окреме подання ) for an order setting aside the City Court's ruling. On 16 December 1999 the Supreme Court of Ukraine granted the application in part. Although it held that the case should be remitted for an additional investigation, it specified that certain matters did not have to be investigated further since the information previously obtained was sufficient. 22. On 5 January 2000 the prosecution service finished a supplementary investigation into the case and the applicant was allowed to inspect the file. 23. On 7 February 2000 the additional investigation was completed and the applicant was allowed to familiarise himself with the material in the case-file. 24. On 22 February 2000 the preliminary investigation was reopened in order to conduct additional investigative acts. 25. On 30 October 2000 the City Court ruled that the investigation into the charges of unlawful currency transactions should be dropped as criminal liability for unlawful currency transactions had been abolished and Article 80 of the UCC repealed. 26. On 19 February 2001 the City Court convicted the applicant of repeated financial fraud, acts in preparation of financial fraud, forgery committed by an official, aggravated forgery and abuse of power. It sentenced him to five years and six months'imprisonment, and ordered the confiscation of all his personal property. It acquitted him of the offences of aiding and abetting the concealment of the proceeds of currency sales, tax evasion and aggravated fictitious trading. On the basis of the Amnesty Law of 11 May 2000, and because the applicant had already been detained for two years, ten months and fifteen days, the City Court decided to exempt him from serving the sentence. None of the parties appealed to the Supreme Court. B. The detention of the applicant 27. On 8 April 1997 an investigator of the Investigative Division decided that the applicant should be temporarily detained as a suspect ( затриманий в якості підозрюваного ) in accordance with Article 115 of the Code of Criminal Procedure (“the CCP”). He was accordingly placed in custody that day. 28. On 11 April 1997 the Prosecutor of Kyiv sanctioned a warrant issued by the investigator authorising the applicant's arrest ( санкцію на арешт ) as a preventive measure pending trial (Article 155 of the CCP). 29. On 12 May 1997 the applicant applied to the Moskovsky District Court of Kyiv for orders to quash the warrant and release him. On 28 May 1997 the District Court rejected the applicant's claims as unsubstantiated. It also held that the applicant's detention was lawful. 30. From 8 April 1997 until 22 February 2000 the applicant was detained in the Temporary Investigative Isolation Unit of the Kyiv Region (SIZO No. 1 of the Kyiv Region). 31. The duration of the investigation and the applicant's detention were extended on successive occasions: to six months on 29 May 1997 by the Prosecutor of Kyiv, to nine months on 1 October 1997 by the Deputy Prosecutor General of Ukraine, to twelve months on 18 December 1997 by the Deputy Prosecutor General of Ukraine and to fifteen months on 28 March 1998 by the Acting Prosecutor General of Ukraine. 32. On 12 April 1998 the investigator informed the applicant that the preventive measure of detention could be replaced by release on bail. The Prosecutor of Kyiv informed the applicant by a letter of 20 July 1998 that bail had been fixed in the sum of 232,716 Ukrainian hryvnas (UAH). 33. On 22 July 1998 that amount was deposited in the account of the Main Department of the Ministry of Internal Affairs in Kyiv by Ukrinbank (the surety and the applicant's former employer). On 19 August 1998 the Department returned the sum and refused to release the applicant on bail. 34. On 30 June 1998 the Acting Prosecutor General of Ukraine extended the period of the investigation and the applicant's detention for another three months (until 30 September 1998 ), bringing the total period to eighteen months. 35. On 1 November 1999 the City Court refused to change the preventive measure, requiring the applicant to remain in custody. On 16 December 1999 the Supreme Court of Ukraine upheld that decision. 36. The applicant was detained during the prosecution's further investigation from 1 November 1999 onwards. 37. On 22 February 2000, owing to the expiry of the maximum statutory period of detention, the Kyiv Regional Prosecutor decided to release the applicant on his undertaking not to abscond. The applicant was released on 23 February 2000. C. Hunger strike, force-feeding and medical treatment of the applicant 38. The applicant went on hunger strike on 13 April 1998, consuming only water. On 17 April 1998 the applicant's medical condition was examined and, following an acetone analysis of his urine on 20 April 1998, he was subjected to force-feeding as of 23 April 1998. The applicant suspended his hunger strike on 14 July 1998, only to resume it again in October 1998. 39. On 1 December 1999 the doctor of the detention facility issued a statement that the applicant was receiving medical treatment and, because of his continuing hunger strike, was being force-fed. 40. The Government mentioned that between 27 May 1997 and 7 February 2000 the applicant was examined by doctors on sixty-one occasions. However, they made no reference to any medical examinations of the applicant in the period from 5 August 1998 to 10 January 2000 (see paragraph 50 below). 41. On 5 February 1998 the doctor of the detention centre diagnosed the applicant as having allergic dermatitis ( алергійний дерматит ). 42. On 8 April 1998 the doctor of the detention centre, after examining the applicant, diagnosed him as also suffering from streptococcal impetigo ( стрептодермія ) and chronic cholecystitis ( хронічний холецистит ). 43. On 8 May 1998 the forensic medical examination No. 58 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant suffered from microbic eczema, chronic cholecystitis and neurocirculatory dystonia. It recommended that the applicant undergo specialised medical treatment for eczema as an inpatient. 44. On 2 June 1998 the doctor of the Central Hospital of Kyiv, Dr Glukhenky, found that the applicant had contracted disseminated microbic eczema ( розповсюджена мікробна екзема ). He also recommended that the applicant undergo medical treatment as an inpatient. 45. On 13 July 1998 the Deputy Head of the Investigative Department requested that the applicant be admitted to the Kyiv Specialist Dermato-Venerological Hospital for further treatment of his skin diseases as from 14 July 1998. 46. On 14 July 1998 the applicant was taken to the hospital and, after his preliminary medical examination there, he was diagnosed as suffering from scabies ( чесотка ) and pyodermatitis ( піодерматит ). The hospital recommended that the applicant be returned to SIZO No. 1 for further medical treatment for scabies. 47. On 20 July 1998 the forensic medical examination No. 88 carried out by the Kyiv City Medical Examinations Bureau concluded that the applicant had suffered from disseminated microbic eczema from 8 May to 2 June 1998. It also found that the applicant suffered from scabies and that this disease could be treated in SIZO No. 1 if there were no appropriate conditions for his treatment as an inpatient. On the same date the investigator of the Investigative Division rejected as unsubstantiated the applicant's request for medical treatment as an inpatient. 48. The applicant underwent medical treatment for scabies on 31 July 1998 in the medical unit of the detention centre. 49. The applicant continued his hunger strike between 10 January and 7 February 2000. During this period he was examined by a doctor on eighteen occasions. 50. According to the applicant, his last hunger strike lasted from 5 October 1998 to 23 February 2000. In accordance with the timetable of medical examinations provided by the Government, no medical examinations of the applicant were performed between 5 August 1998 and 10 January 2000 (see paragraph 40 above). 51. Following his release on 23 February 2000, the applicant was admitted to Kyiv City Hospital from 24 February until 17 March 2000. He subsequently continued to receive medical treatment under the general supervision of a psychiatrist. D. Complaints to the Constitutional Court of Ukraine 52. On 2 February 2000 the applicant's sister, on behalf of the applicant, lodged complaints with the Constitutional Court of Ukraine seeking to establish that it was unconstitutional to hold the applicant in custody after the maximum statutory term of detention had expired. She also petitioned the Constitutional Court for a ruling that Article 156 of the CCP, which allowed suspects to be detained while the case was being investigated, was unconstitutional. On 25 February 2000 the Registrar of the Constitutional Court rejected his complaints, as the court had no jurisdiction to consider them. | Several times during his detention, as a result of having gone on hunger strike, the applicant was subjected to force-feeding, which he claimed had caused him substantial mental and physical suffering, in particular given the manner in which it was carried out: he had frequently been handcuffed to a chair or heating facility and forced to swallow a rubber tube connected to a bucket with a special nutritional mixture. The applicant also maintained that whilst remanded in custody he had been deprived of adequate medical treatment for the various diseases that he suffered from, and that the conditions of detention (notably being placed in an isolation cell for 10 days while on hunger strike) had also been in breach of Article 3 (prohibition of torture and inhuman or degrading treatment) of the Convention. |
556 | Way of life, forced evictions and alternative accommodation | I. THE CIRCUMSTANCES OF THE CASE A. The relevant background 1. The applicants’ homes 6. The applicants are residents of Batalova Vodenitsa, a neighbourhood of Sofia. They describe themselves as being of Roma origin. 7. Unlike some other European countries, where the Roma often have an itinerant way of life, in Bulgaria, at least since the 1960s, the great majority of the Roma live a settled life. Typically, Bulgarian towns feature one or more predominantly Roma neighbourhoods in non-central areas. 8. Some of the applicants or their parents and in some cases their grand ‑ parents moved to Batalova Vodenitsa at the end of the 1960s and in the 1970s. Others are more recent arrivals who settled there in the 1990s. 9. In the 1960s land in the neighbourhood in question was expropriated by the State and cleared in the context of the authorities’ housing construction policy. A number of blocks of flats were constructed there, but the plots currently inhabited by the applicants remained vacant, having been earmarked for a green area, which was never landscaped. 10. The applicants’ families built their homes on State land without any authorisation. The area thus gradually developed into a small Roma settlement. It appears that between 200 and 300 persons live there. 11. Most of the buildings are single-storey houses. There is no sewage or plumbing. The inhabitants use water from two public fountains. 12. Most applicants’ registered addresses are at their homes in Batalova Vodenitsa. Many of them are registered at one and the same address although they live in separate buildings which do not figure on any official area plan. Most of the applicants live in their houses with their families, including young children or grandchildren. 13. The applicants never sought to regularise the buildings they had constructed. This was in principle possible through applications for building permits and planning approval. According to the applicants, making such applications was difficult for them as they are poor and live their lives in the Roma community, isolated from the rest of society. 14. It is undisputed by the parties that the applicants’ homes do not meet the basic requirements of the relevant construction and safety regulations and cannot be legalised without substantial reconstruction. 15. In 1987 the local building plan was amended and the construction of dwellings was envisaged on the plots in question. The plan was never implemented. 16. Following a legislative reform, in 1996 the land occupied by the applicants became the property of the Sofia municipality. 17. Until 2005, the State and municipal authorities never took steps to remove the applicants and their families. 18. Under the relevant law the applicants cannot obtain ownership of the land they occupy. Until 1996 the provisions on acquisitive prescription did not apply in respect of State and municipal land. Since 1996, these provisions, under which a ten-year period of possession may suffice for the acquisition of real property, apply to most categories of municipal land. However, in 2006, shortly before the expiry of ten years after the 1996 amendment, Parliament suspended the running of prescription periods in respect of State and municipal land. The suspension has been extended several times and is currently in force until 31 December 2014 (sections 79 and 86 of the Property Act and the transitional provisions thereto). 19. According to a statement by a Mr B. T., a Roma resident of Batalova Vodenitsa, his parents are the lawful owners of their house there and possess a notarial deed. A copy of the notarial deed has not been submitted by the applicants. Neither Mr B.T. nor his parents were among the addressees of the removal order of 17 September 2005 (see paragraph 31 below). 2. Complaints by third persons, public declarations, protests and media coverage 20. From the beginning of the 1990s tension grew in several regions of Sofia between the inhabitants of Roma settlements and their non-Roma neighbours. The issue of Roma settlements, often referred to as “ghettos”, was widely debated in the media. Many commentators urged the emptying of all “Roma ghettos” in Sofia. This line was supported by a number of leading politicians. Occasionally, the views of Roma organisations were also published. 21. Between 2003 and 2006 several demonstrations were held by non-Roma residents of different areas in Sofia seeking the eviction of their Roma neighbours. Other demonstrations were held by non-Roma persons protesting at news of plans by the authorities to resettle in their neighbourhoods Roma families to be removed from other parts of the city. 22. It appears that on an unspecified date non-Roma residents of Batalova Vodenitsa formed an association with the aim to bring pressure to bear on the authorities in relation to the applicants’ unlawful settlement. 23. Most complaints against the Roma inhabitants of Batalova Vodenitsa concerned sanitary risks and repulsive odours caused by the absence of sewage and the fact that the inhabitants kept animals (allegedly including sheep, pigs, hens and horses). Also, many non-Roma residents of the area believed that the Roma inhabitants were responsible for numerous offences, including physical assault, theft and damage to public and private property. The protesters also resented on aesthetic grounds the presence of unsightly shanty houses in the area. 24. The municipal authorities in Sofia perceived as a serious problem the fact that since 1990 many Roma had moved to Sofia and settled in illegal Roma settlements, thus increasing their overpopulation and generating more illegal construction and sanitary problems. B. The decision to remove the applicants and the ensuing judicial proceedings 25. In March 2000 an unspecified number of individuals, apparently persons who had obtained decisions restoring their property rights over expropriated land in the Batalova Vodenitsa area, complained to the Sofia municipal council that “persons of Roma origin” were unlawfully occupying land in the area. Having examined the matter, on 11 December 2000 the municipal council decided to offer the restored owners other municipal land in exchange for their land. It also invited the mayor of Sofia to develop a plan for the resolution of the “problem as a whole”. No such plan appears to have been adopted. 26. In 2003 the local building plan in Batalova Vodenitsa was modified by the municipal authorities, who planned to develop the area. 27. On 2 March 2005 the Sofia municipal council approved in principle the transfer of title to plots of land in Batalova Vodenitsa to Mr K., a private investor. The transfer was effected on 16 May 2006. The plots of land in question were adjacent to the land occupied by the applicants. It is unclear whether Mr K. ever realised any development project. 28. On 29 August 2005 municipal officials visited the Batalova Vodenitsa neighbourhood and issued a document certifying that the applicants and other persons occupied the land. 29. On 8 September 2005, Ms S., the district mayor, invited all or almost all residents – approximately 180 Roma, including the applicants – to leave their homes within seven days as they were occupying municipal land unlawfully. The text referred to section 65 of the Municipal Property Act and contained a list of the names of its addressees and also a warning that failure to comply would result in removal by the police. 30. The applicants filed an appeal. On 15 September 2005 municipal officials issued a document certifying that the residents concerned had not left the area. 31. As a result, on 17 September 2005 the mayor ordered their forcible removal on 27 September 2005. The order listed individually the names of all those concerned. The mayor also stated her intention to secure a decision for the demolition of the applicants’ houses in accordance with the Building Planning Act ( Закон за устройство на територията ). 32. The applicants asked the Sofia City Court to stay their removal pending the examination of their appeal against the removal order. The court granted their request. 33. On 28 September 2005 a committee representing the Roma residents of the area signed an agreement with the municipal authorities in Sofia according to which the municipality would offer alternative housing to the persons registered as Batalova Vodenitsa residents, whereupon they would be removed. No action was taken by the municipality in execution of this agreement. 34. The agreement also provided that the committee of representatives would take measures to improve hygiene in the Roma settlement. They also undertook to organise the removal of unauthorised domestic animals kept by residents and keep better order. According to the Government, the situation did not improve. 35. In the judicial proceedings against the mayor’s order, on 12 January 2006 the Sofia City Court ruled that the removal order was lawful. The applicants appealed. On 12 June 2006, the Supreme Administrative Court upheld the City Court’s judgment. 36. The courts found that the fact that the applicants had not shown a valid legal ground for occupying the land was sufficient to establish that the removal order was lawful. If the applicants considered that they had property rights, it was for them to seek notarial deeds or bring civil proceedings to establish those alleged rights. They had not done so. In these circumstances and having regard to section 92 of the Property Act, their houses were owned by the municipality. 37. The courts also stated that the applicants’ allegations about violations of the Convention and discrimination were groundless. 38. The courts ignored as irrelevant under domestic law the applicants’ argument that they should not be removed because they had lived in the area for decades with the authorities’ acquiescence, and their arguments based on the principle of proportionality. C. Attempt to remove the applicants in 2006 39. On 21 June 2006, the municipal authorities announced their intention to evict the unlawful residents of Batalova Vodenitsa, including the applicants, by 28 June and to demolish their homes. On 22 June 2006 the district mayor was reported in the press as having stated that the removal order had been issued as a result of numerous complaints by neighbours in relation to the unlawful settlement. 40. As a result of political pressure, mainly from members of the European Parliament, the authorities did not proceed with the eviction. 41. In their public declarations the municipal authorities apparently took the stand that the removal of the Batalova Vodenitsa residents was overdue but could not be done immediately because of pressure “from Europe”. Divergent opinions were expressed as to whether the municipality should try to find alternative housing for the residents of Batalova Vodenitsa. In public declarations the mayor of the district stated that this was not possible because the residents concerned had not been registered as persons in need of housing and the municipality could not give them priority over other people who had been on the waiting list for many years. 42. On an unspecified date shortly after 12 June 2006, Ms S., the mayor of the relevant district, participated in a televised debate concerning the fate of the Roma settlement in Batalova Vodenitsa. She stated, inter alia, that the Roma inhabitants there did not have the right to be registered as persons in need of housing because they were occupying municipal land unlawfully. For that reason, she would not offer them the tenancy of municipal dwellings, there being many other families on the waiting list. The district mayor further stated that the agreement of 28 September 2005 between the mayor of Sofia and a committee of representatives of the Roma families “had been concluded in a pre-electoral period” and that she did not consider herself bound by it. She also stated that the removal order had been upheld by the courts and must be enforced; the fact that the persons concerned had nowhere to go was irrelevant. The mayor further stated that she had received complaints by non-Roma inhabitants of the area and was under a duty to act. 43. Most of the applicants have not tried to make arrangements to find new homes for their families. Between 2004 and 2007 three of the applicants registered at addresses in other areas of Sofia. In 2005 one of the applicants declared an address in the town of Sandanski as her official address. According to these four applicants, although for short periods they lived outside Batalova Vodenitsa, in dwellings occupied by relatives, their only real home had remained Batalova Vodenitsa. 44. It appears that after June 2006 negotiations continued between the Roma inhabitants and the municipal authorities regarding possible relocation in temporary municipal housing of those persons in the applicants’ position who had been registered as resident in Batalova Vodenitsa before 1996. Non-governmental organisations defending the rights of the Roma and Government representatives also took part. 45. Information about intentions to resettle the Batalova Vodenitsa unlawful residents have met with strong opposition from inhabitants of neighbourhoods where such relocation was envisaged. It appears that no viable resettlement plan has ever been elaborated. 46. In interviews and statements, local officials supported the non-Roma population. In a radio interview in November 2006, the mayor of Ovcha Kupel district in Sofia stated that “the nuisance that a Roma settlement would create [if Roma families were to move into his district] would surpass by far the inconvenience that a refuse tip would create”. He also stated that “Roma families could not expect to live among the citizens as they did not have the necessary culture”. D. Attempt to remove the applicants in 2008 and developments since then 47. On 27 June 2008 the municipal authorities served a notice on the inhabitants of the area, including the applicants, requiring them to leave their houses by 10 July 2008, failing which they would be evicted forcibly on 11 July 2008. 48. The notice was issued in execution of the removal order of September 2005, which was final and enforceable. 49. On 8 July 2008 the Court indicated to the Government of Bulgaria, under Rule 39 of the Rules of Court, that the applicants should not be evicted from their houses until 23 July 2008, pending receipt by the Court of detailed information about any arrangements made by the authorities to secure housing for the children, elderly, disabled or otherwise vulnerable individuals to be evicted. 50. The Government submitted a copy of a statement by Ms S., the district mayor, who indicated that two local social homes could provide five rooms each and that several elderly persons could be housed in a third home. There was no information about any possibility to house families together. 51. Also, it appears that none of the applicants was willing to be separated from the community and housed in such conditions, not least because it was impossible, according to them, to earn a living outside the community. 52. On 22 July 2008 Ms S., the district mayor, stated that she had suspended the enforcement of the removal order “pending the resolution of the housing problems of the Batalova Vodenitsa residents”. The order was not quashed. 53. In the light of this information, the President of the Court’s Fifth Section decided on 23 July 2008 to lift the interim measure of 8 July 2008, specifying that the decision was taken on the assumption that the Court and the applicants would be given sufficient notice of any change in the authorities’ position for consideration to be given to a further measure under Rule 39 of the Rules of Court. 54. On 23 July 2008 the National Council for Cooperation on Ethnic and Demographic Issues, which includes representatives of non-governmental organisations and is presided over by the Director of the Ethnic and Demographic Matters Directorate at the Council of Ministers, discussed the issue. Representatives of the Sofia municipality were advised to refrain from measures seeking to resolve the problem in Batalova Vodenitsa at the expense of creating tension in other areas. The majority view was that the Roma families living in Batalova Vodenitsa should not be evicted and their homes should not be demolished before a lasting solution was found. 55. According to a letter from the Director of Ethnic and Demographic Matters, sent in January 2009 in connection with the present application, the Sofia municipality was working on a programme for the revitalisation of Roma neighbourhoods. It was envisaged to construct temporary housing on several municipal plots of land. Partial initial financing of the construction work could be provided by the Government but other sources were needed as well. It was envisaged to encourage the Roma applying for housing to take jobs in the construction work under the relevant social employment schemes. The project’s elaboration, including architectural plans, was allegedly under way. The project concerned Roma families who moved to Batalova Vodenitsa before 1996. Those who settled there more recently had “to return to their previous homes”. 56. On 12 January 2010, in reply to a letter from residents protesting against the authorities’ failure to evict their Roma neighbours from Batalova Vodenitsa, Ms S., the district mayor, stated that the enforcement of the 2005 eviction order had been postponed under pressure from members of the European Parliament and that the applicants had started proceedings in the European Court of Human Rights. The letter did not mention plans to secure alternative housing for the persons to be evicted. 57. According to media reports, in May 2010 plans to resettle the inhabitants of Batalova vodenitsa on other State or municipal property were discussed by the municipal authorities. 58. In their latest submissions of December 2010 the parties have not reported any progress in the realisation of such projects. 59. According to the applicants, the resettlement plans mentioned by the authorities are nothing more than empty promises. E. Other relevant facts 60. In March 2006 a ten-year National Programme (2005-2015) for the Improvement of the Housing Conditions of Roma in Bulgaria was adopted by the Council of Ministers in the context of the international initiative entitled Decade of Roma Inclusion 2005–2015. 61. In September 2007, the Sofia municipal council adopted a plan for the implementation of the ten-year national programme in Sofia for the period 2007-2013. The document includes an analysis of the existing situation in respect of housing. 62. According to this analysis, overpopulated Roma settlements had formed over the years in Sofia and nothing had been done by the authorities in the past to address the ensuing problems. Having always been a marginalised group with minimal resources, the Roma cannot in practice acquire real property. Traditionally they occupy vacant land and construct makeshift huts. Although most of them, being persons in need of housing, meet the relevant criteria for tenancy of municipal housing, this option does not work in practice owing to several factors, including the limited number of available municipal dwellings and unwillingness on the part of many Roma families to resettle in municipal flats. Their unwillingness could be explained partly by the lack of the necessary resources to cover the related expenses, such as utility bills, and partly by the animosities which often erupt between non-Roma residents of blocks of flats and Roma families moving in. 63. The ten-year National Programme and the 2007-2013 Sofia plan provide for the following actions, among others: elaborating municipal housing programmes, legalising buildings if they meet the relevant construction standards, constructing sewage and water-supply facilities in Roma neighbourhoods and providing information and assistance to those who apply for municipal housing. 64. The 2010 Monitoring report on the implementation of the Decade of Roma Inclusion 2005–2015 programme does not mention any progress having been made in respect of Roma housing. The concluding text of the report contains a recommendation to the relevant institutions and stakeholders to make timely use of the possibilities under Article 7(2) of Regulation (EC) No. 1080/2006 on the European Regional Development Fund. 65. According to media reports, in several regions in Bulgaria construction works are under way for the building of dwellings intended to house Roma who have been removed or are to be removed from land which they occupy unlawfully. | This case concerned the Bulgarian authorities’ plan to evict Roma from a settlement situated on municipal land in an area of Sofia called Batalova Vodenitsa. |
344 | Rape and sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1962 and lives in Maribor. 6. On the evening of 3 November 1983, the applicant, who was eight months pregnant and was returning home from work, was attacked by three men, A.M., T.D. and N.T. They pulled her into a car, drove to a remote location and raped her one after the other. 7. Immediately after the incident, the applicant went to the Maribor Police. The police arrested the three men at around midnight. They remained in custody following an investigating judge ’ s order. They were released from custody on 24 November 1983. The applicant was taken to the Maribor Hospital to be medically examined. 8. On 5 November 1983 the police lodged a criminal complaint against A.M., T.D. and N.T. accusing them of rape. Three days later, the Maribor District Public Prosecutor asked the investigating judge of the Maribor Basic Court to open an investigation. 9. During the investigation, three reports concerning the examination of the crime scene were prepared, and the three accused men and witnesses were heard by the investigating judge. T.D. and N.T. admitted to having had sex with the applicant, but denied that any force had been used. A.M. denied having had sex with the applicant. 10. On 13 March 1984 A.M., T.D. and N.T. were charged with aggravated rape under section 100 § 2 of the Penal Code of the Republic of Slovenia. The proceedings that followed were conducted in secrecy in order to protect the private lives of those involved. 11. The first trial hearing was scheduled for August 1988. However, it was adjourned due to the absence of A.M. and N.T. Another hearing to be held on 24 February 1989 was adjourned because it had proved impossible to serve a court order on N.T. In this connection, the Government pointed out that all three men had been born outside the territory of Slovenia and were Roma. At the time of the incident, two of them (A.M. and T.D.) resided in Slovenia, while the third (N.T.) resided in another part of what was then Yugoslavia. 12. On 14 December 1989, an order for detention pending trial was issued against N.T. because he was considered to pose a flight risk. However, he could not be found and went missing. Therefore, an arrest warrant was issued against him on 25 April 1990, which could not, however, be executed. In May 1995, the court conducted inquiries as to the whereabouts of all three defendants and established the places of residence of A.M. and T.D. , but not that of N.T. A hearing on 13 October 1995 was adjourned due to the absence of A.M. ’ s defence counsel. As his whereabouts could not be established, on 26 October 1995 the charges against N.T. were severed into a separate case. 13. N.T. could not be found and brought to trial in the following years, so an international arrest warrant was issued against him in 2004. However, his whereabouts remained unknown and the charges against him were dropped on 1 October 2008. The international arrest warrant was revoked on 29 September 2010. 14. The main hearing in the case against A.M. and T.D. began on 18 November 1996 and continued on 27 and 30 March 1998, 29 April 1998 and 5 June 1999. Thirty-one other hearings were scheduled between 29 November 1995 and 4 March 2002, though they were all postponed, mainly due to the absence of the defendants or of their counsel. From 2000 onwards, a number of steps were taken in order to ensure the presence at trial of T.D., who had apparently been absent from Slovenia for some time. At the end of 2000, the presiding judge proposed that he be placed in detention to prevent him failing to appear at court for hearings, but the extrajudicial panel rejected this proposal, ordering that less severe measures, such as bringing him to hearings by force, should be envisaged first. 15. On 7 July 2003 T.D., who was then fifty years old, died. On 16 January 2004 the part of the case concerning the charges against him was severed from the ongoing proceedings. 16. The Maribor District Court held hearings on 26 May 2004 and on 3 November 2004. The court, amongst other things, heard A.M., the applicant, her husband and five other witnesses, read out the statements given by T.D. and N.T. earlier in the proceedings, and looked into the applicant ’ s medical reports, the record of the examination of the scene of the crime, the record of the examination of A.M. ’ s car and a variety of other documents. 17. On 3 November 2004 the court issued a judgment finding A.M. guilty of the criminal offence of aggravated rape. He was sentenced to two-and-a-half years in prison. When setting the sentence, which was below the minimum three-year sentence prescribed by law, the court referred to the significant lapse of time from the commission of the crime. It noted that the reasons for the delays in the proceedings had been predominantly caused by the behaviour of T.D. and N.T. 18. Following an appeal by A.M., on 10 November 2006 the Maribor Higher Court quashed the judgment and remitted the case for re-examination. It instructed the Maribor District Court to examine whether A.M. had committed the criminal offence in question or had only attempted to commit it, and whether he had previously known the applicant, which might have raised doubts as to her credibility. 19. On 24 April, 15 June, 14 September, 19 October and 6 November 2007, the court held hearings at which it heard the applicant and a number of witnesses. On the last of those dates, the Maribor District Court issued a judgment finding A.M. guilty of aggravated rape under section 100 § 2 of the Penal Code of the Republic of Slovenia. It sentenced him to two-and-a-half years in prison, referring to the extreme amount of time that had passed since the commission of the offence. 20. Following a further appeal by A.M., on 10 July 2008 the Maribor Higher Court further reduced his sentence to one year in prison, referring to the passage of time, A.M. ’ s young age (namely 21) at the time of the event, the fact that he had not been later convicted of any other criminal offence, his deteriorating health and the fact that he had a minor child. It upheld the reminder of the Maribor District Court ’ s judgment. 21. A.M. submitted an appeal on points of law (a request for the protection of legality), which was rejected by the Supreme Court on 3 September 2009. 22. Meanwhile, on 28 July 2009 the applicant had instituted civil proceedings against A.M. seeking damages in the amount of 50,000 euros (EUR) for non-pecuniary damage suffered as result of the rape which had been established by the final criminal judgment. 23. On 31 March 2010 the court issued a default judgment. On 18 May 2010 A.M. appealed, arguing that he had not been duly summoned to appear. A hearing was held on 6 September 2010. On 23 December 2010 the court granted reinstatement and summoned the parties to appear at a hearing on 31 March 2011. However, this hearing was adjourned until 24 May 2011 at the request of the defendant ’ s counsel. On that date the parties reached a court settlement by which A.M. was to pay EUR 15,000 (by means of a number of instalments) to the applicant. The civil case was consequently concluded. The applicant alleged that she has not received any compensation to date. | The applicants complained that Slovenia had failed to provide an effective system of prosecution and trial against the men whom they had accused of rape, the related criminal proceedings having lasted some 26 years in the first case and over nine years in the second case. |
195 | Prohibition of discrimination (Article 14 of the Convention) | 2. The applicant was born in 1958 and lives in Tbilisi. She was represented by three Georgian lawyers – Ms M. Kurtanidze, Ms B. Pataraia and Ms S. Gogishvili – and two British lawyers – Mr Ph. Leach and Ms J. Gavron. 3. The Government were represented by their Agent, Mr B. Dzamashvili, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. circumstances leading to the killing of the applicant’s daughter 5. The applicant’s daughter, M.T., was born on 14 February 1981. In August 2013 she and L.M., without having their marriage officially registered, moved into a flat together in Rustavi, sharing with L.M.’s parents. M.T.’s daughter from her previous marriage was six years old at the time. 6. The couple started having arguments shortly after moving in together, as it appeared that L.M. suffered from pathological jealousy. 7. On 29 April 2014 L.M.’s father called the police because his son was abusing M.T. The police went to the flat and drew up a report stating that L.M. was heavily intoxicated and had threatened to kill the applicant out of jealousy. L.M.’s parents told the police officers that their son suffered from pathological jealousy and was otherwise mentally unstable, becoming particularly aggressive while drunk. The father further stated that his son’s violent behaviour and death threats against their daughter-in-law were frightening and difficult to cope with, and that he wanted the police to make L.M. leave the property. The report also stated that, M.T., fearing for her life, had also asked the police to take all the measures necessary to prevent her partner from behaving in a similar way again. A criminal investigation was never opened into the matter, and no restrictive measures were issued in respect of L.M. 8. On 22 September 2014 M.T. called the police to say that L.M. had verbally and physically abused her. A police officer arrived at the scene and drew up a report indicating that M.T. had been physically assaulted by her partner, in an act classified as criminal battery, as a result of which she had called an ambulance and received medical assistance. The report also noted that she had been subjected to systematic verbal abuse and threats. L.M.’s mother confirmed her son’s abusive behaviour. The police officer then questioned L.M., who acknowledged that he was a jealous person and had indeed made death threats against M.T. multiple times. He assured the officer that he would never harm M.T. because he loved her and cared about their life as a couple. He promised that he would never assault his wife again. During the interview with the officer, L.M. also stated that he had previously been convicted of robbery and unlawful possession of drugs. 9. On the same date M.T. was interviewed by an investigator from the criminal police unit. After the interview, the investigator issued a report which reclassified L.M.’s beating of M.T. as a less serious “shove”, adding that “M.T. state[d] that she [did] not need any kind of medical treatment”. The police officer advised the applicant’s daughter that it was not possible to arrest her partner or to request any other restrictive measure given the “minor” nature of the “family altercation”. An investigation was never opened into the matter. 10. On 23 September 2014 M.T., traumatised by the previous day’s incident, left L.M. and moved in with her mother in Tbilisi. Following her departure, L.M. started sending her telephone messages containing various threats, including the following: “I can easily make you disappear”, “I’m going to commit suicide, I can’t live without you” and “No one can stop me, I’m not afraid of the police”. He also made death threats against M.T.’s young daughter. 11. On 26 September 2014 M.T. reported to the police that L.M. had been threatening to kill her. A police officer’s report of that day states that M.T. submitted that she had been receiving insulting messages and threats from L.M. (including those described in the previous paragraph) and that she wanted the police to help her end the aggression once and for all. The police officer advised M.T. that no restrictive measures could be taken in respect of her partner because his violent conduct had not been witnessed by the police. 12. On 27 September 2014 M.T. filed a criminal complaint against L.M. for further threats against her and her daughter. In particular, she reported that the previous evening L.M. had tried to break into her and her mother’s flat. As the women had managed to block the front door, he had tried to smash the door open, threatening to set fire to M.T.’s car and kill the applicant, her daughter and her granddaughter. As a result, L.M. was summoned and interviewed by the criminal police. According to the interview record, L.M. stated that he simply wanted to get back together with M.T, whom he loved deeply. The investigator from the criminal police then reclassified the reported death threats as verbal abuse and pleas to return to life as a couple. A criminal investigation was never opened, but a formal warning was issued against L.M. not to engage in any kind of dispute with M.T. or risk facing the full force of the law. 13. On 28 September 2014, when M.T. was returning home, she was accosted by L.M. at the entrance to her block of flats. Having managed to escape and reach her flat safely, she immediately called the police. A report drawn up by a police officer that day stated that for the three previous days M.T. had been receiving text messages on her mobile telephone containing death threats from her partner, about which she had already lodged a complaint with the criminal police. The officer explained that the police could not arrest L.M. for just making threats, in the absence of a physical assault. According to the applicant’s recollection of the incident, the officer suggested, as an alternative solution, that M.T. tell her brothers about the violence she had been subjected to so that they could take revenge on L.M. by “breaking his bones”. 14. Between late September and mid-October 2014 the applicant went to the Didube-Chughureti district police station in Tbilisi three times to report that L.M. had been stalking and threatening her daughter every day, urging the police to protect the latter. She also reported how he had once gone to her daughter’s workplace with a hand grenade and threatened to detonate it. The police did not take any action. 15. On 15 October 2014 M.T. called the police and stated that L.M. had been at her place of work – she was an English language professor at a university – looking for her. She stated that she was extremely scared of him. A police officer went to see her and took a statement. No further steps were taken by the police, with the police officer reiterating the explanation that an aggressor had to be caught “red-handed” before being arrested or any other restrictive measure could be applied. M.T. urged the security guards of the university to never let L.M. into the building again. 16. On 16 October 2014 M.T. called the police and told them that when she had been driving to her daughter’s school, she had been followed by L.M., who had tried to stop her and had almost crashed into her car with his car. A report drawn up by the police officer at the scene stated that M.T. submitted that she had been disturbed by her ex-partner, who had shown up at her workplace, engineered encounters with her in the street and interfered with her freedom of movement. The report ended with an explanation addressed to M.T. “to call the police the very moment he approach[ed] and verbally insult[ed] her or if he [made] a threat.” No further steps were taken by the police. 17. On the same day the applicant went to the police herself to report that her and her daughter’s lives had become unbearable as L.M. had been terrorising them on a daily basis. The applicant indicated in her statements that she knew that her daughter, genuinely concerned for her life and safety, had been carrying defence pepper spray and a taser with her at all times. The applicant pleaded for State protection. Without resorting to a restraining order or any other restrictive measures against L.M., the police officers limited themselves to drawing up a new report, recording the applicant’s statements. 18. According to the various records and reports drawn up by the police officers in relation to the incidents of domestic violence described above (see paragraphs 7-17 above), neither the applicant nor her daughter were ever advised of their procedural rights or the legislative and administrative measures of protection available to them under the Criminal Code and the Domestic Violence Act (see paragraphs 29-34 below). 19. On 17 October 2014 L.M. went to M.T.’s workplace and asked her to come out of the classroom where she was holding a lesson for students so that he could talk to her. When she entered the corridor, he shot her dead with a gun. Immediately afterwards he turned the gun on himself and committed suicide. legal steps taken by the applicant 20. On 17 October 2014 an investigation was opened into the double homicide and unlawful possession of a firearm by L.M. Domestic violence was added to the file as the motive a few days later. On 31 December 2014 the investigation was discontinued as the person liable for the crime was deceased. 21. On 8 April 2015 the applicant filed a criminal complaint with the district public prosecutor’s office, requesting that an investigation be opened against the police officers dealing with her daughter’s domestic violence allegations case for negligence. As no reply was received, she reiterated the same complaint, further specifying that the inactivity of the police officers in question could also be considered gender-based discrimination. She lodged her complaint on at least four occasions between 5 August and 22 December 2015 for the attention of either the Chief Public Prosecutor’s Office, the authority competent to launch criminal inquiries against police officers, or the General Inspectorate of the Ministry of the Interior (“the MIA”), the unit in charge of disciplinary supervision of those working for the Ministry. 22. While the prosecution authority left all the applicant’s complaints unanswered, the MIA replied to her on 18 January 2016, stating they had no general jurisdiction to open an investigation into a crime allegedly committed by its officials without the consent of the Chief Public Prosecutor of Georgia. 23. On 21 September 2016 the applicant’s representative again contacted the Chief Public Prosecutor’s Office with a request for a criminal investigation to be launched against the police officers. She submitted that notwithstanding the number of occasions on which the applicant’s daughter had reported the physical violence and death threats against her to the police, they had failed to ascertain the high likelihood of danger and to open an investigation, inaction which had resulted in her murder. Furthermore, she emphasised that she considered the latter to be an indication of gender ‑ based discrimination. No reply was received. 24. On 11 April 2017 the applicant enquired with the Chief Public Prosecutor’s Office whether it had received her previous letters and complaints and as to the reasons for its lack of response. By a letter of 5 May 2017, it confirmed that it had duly received all her previous correspondence, but did not provide any responses to her earlier complaints. | This case concerned the Georgian authorities’ alleged failure to protect the applicant’s daughter from domestic violence and to conduct an effective investigation into the matter. The applicant submitted that the police had been aware of the danger posed to her daughter’s life, but had failed to take the necessary preventive measures. In particular, their response to the numerous complaints she and her daughter had made had been inappropriate and discriminatory. |
127 | Protection from being targeted by paedophiles via the Internet | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1986. 7. On 15 March 1999 an unidentified person or persons placed an advertisement on an Internet dating site in the name of the applicant, who was 12 years old at the time, without his knowledge. The advertisement mentioned his age and year of birth, gave a detailed description of his physical characteristics, a link to the web page he had at the time, which showed his picture, as well as his telephone number, which was accurate save for one digit. In the advertisement, it was claimed that he was looking for an intimate relationship with a boy of his age or older “to show him the way”. 8. The applicant became aware of the advertisement on the Internet when he received an e-mail from a man, offering to meet him and “then to see what you want”. 9. The applicant ’ s father requested the police to identify the person who had placed the advertisement in order to bring charges against that person. The service provider, however, refused to divulge the identity of the holder of the so-called dynamic Internet Protocol ( IP ) address in question, regarding itself bound by the confidentiality of telecommunications as defined by law. 10. The police then asked the Helsinki District Court ( käräjäoikeus, tingsrätten ) to oblige the service provider to divulge the said information pursuant to section 28 of the Criminal Investigations Act ( esitutkintalaki, förundersökningslagen; Act no. 449/1987, as amended by Act no. 692/1997). 11. In a decision issued on 19 January 2001, the District Court refused since there was no explicit legal provision authorising it to order the service provider to disclose telecommunications identification data in breach of professional secrecy. The court noted that by virtue of Chapter 5a, section 3, of the Coercive Measures Act ( pakkokeinolaki, tvångsmedelslagen; Act no. 450/198 7 ) and section 18 of the Protection of Privacy and Data Security in Telecommunications Act ( laki yksityisyydensuojasta televiestinnässä ja teletoiminnan tietoturvasta, lag om integritetsskydd vid telekommunikation och dataskydd inom televerksamhet; Act no. 565/1999) the police had the right to obtain telecommunications identification data in cases concerning certain offences, notwithstanding the obligation to observe secrecy. However, malicious misrepresentation was not such an offence. 12. On 14 March 2001 the Court of Appeal ( hovioikeus, hovrätten ) upheld the decision and on 31 August 2001 the Supreme Court ( korkein oikeus, högsta domstolen ) refused leave to appeal. 13. The person who had answered the dating advertisement and contacted the applicant was identified through his e-mail address. 14. The managing director of the company which provided the Internet service could not be charged, because in his decision of 2 April 2001 the prosecutor found that the alleged offence had become time-barred. The alleged offence was a violation of the Personal Data Act ( henkilötietolaki, personuppgiftslagen; Act no. 523/99, which came into force on 1 June 1999 ). More specifically, the service provider had published a defamatory advertisement on its website without verifying the identity of the sender. V. THIRD - PARTY SUBMISSIONS 33. The Helsinki Foundation for Human Rights submitted that the present case raises the question of balancing the protection of privacy, honour and reputation on the one hand and the exercise of freedom of expression on the other. It took the view that the present case offers the Court an opportunity to define the State ’ s positive obligations in this sphere and thereby to promote common standards in the use of the Internet throughout the member States. 34. It pointed out that the Internet is a very special method of communication and one of the fundamental principles of its use is anonymity. The high level of anonymity encourages free speech and expression of various ideas. On the other hand, the Internet is a powerful tool for defaming or insulting people or violating their right to privacy. Due to the anonymity of the Internet, the victim of a violation is in a vulnerable position. Contrary to traditional media, the victim cannot easily identify the defaming person due to the fact that it is possible to hide behind a pseudonym or even to use a false identity. | In March 1999 an advertisement was posted on an Internet dating site in the name of a 12-year-old boy, with a link to the boy’s web page, stating that he was looking for an intimate relationship with a boy of his age or older “to show him the way”. The boy only found out about the ad when he received an e-mail from an interested man. The service provider refused to identify the person responsible, claiming it would constitute a breach of confidentiality. The Finnish courts held that the service provider could not be legally obliged to disclose the information in question. |
942 | Principle of impartiality | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 9. The applicant is the editor of the political satirical periodical "MHUX fl- Interesstal-Poplu" (NOT in the people ’ s interest). 10. On 3 January 1986 an article entitled "Mix- Xena tax- Xandir" (From the Broadcasting Scene) appeared in the applicant ’ s periodical commenting on a particular parliamentary debate in the Maltese House of Representatives, which had been broadcast live on television. The article included the following passages: "SEND IN THE CLOWN Some felt offended that I had lately written that, during the budget debates, I went berserk and started throwing tomatoes at the television set. And this happened when certain Members of Parliament had not as yet spoken in the debates. I will let your fertile imagination take its course to imagine what I did when two of them in particular were speaking. THE PARLIAMENTARY CLOWN I do not know if I shall be in breach of the Sedition Laws if I describe a minister as a clown. But I cannot fail to comment on Debono Grech ’ s behaviour in Parliament. It seems that Debono Grech deliberately tried to make us laugh. If this is so, Debono Grech is ridiculing what is supposed to be the highest institution of the land. Let us see what Debono Grech was up to. His first sentence was meant to raise some laughs as he maintained that Lawrence Gatt, a Nationalist Member of Parliament, badly needed a pair of spectacles. This was rather a flat joke. Then he started calling names Bonello Dupuis [a Nationalist Member of Parliament] and described the latter as a man who lacked principles. Then he tried to make us laugh once again when he referred to the killing of pigs. Anyway, he tried to play the clown once, twice and even three times. And some of his jokes were rather vulgar. I felt extremely angry that the man who is representing the people, and that includes yours truly, on agricultural matters, was using this serious and important debate to play the clown. Well, I thought, if Debono Grech has the right to speak the way he likes on the television screen, in my home, then I am also entitled to speak my mind. And I started booing him with all my might, and had I had enough tomatoes, I would have used them for other purposes. You may ask me what I did when ‘ il -Profs ’ Bartolo of Cospicua took the microphone. First and foremost, this man is not as yet aware that Mintoff has resigned and Bartolo still echoes him to this very day. Secondly, you stand no chance of finding anything worthwhile after analysing Bartolo ’ s speech. At least, you may find something worthwhile in Debono Grech ’ s speech, but you discover absolutely nothing in Bartolo ’ s. Let me tell you what I did when this professor stood up to speak. I booed this last one so heartily that the neighbours thought that I had had an epileptic fit. To crown it all, Mrs Grech, that nosy parker, entered my home unannounced and without permission and she found me on the floor in an ecstasy of booing. She thought I had become a lunatic. Really, the scene in front of the television was scary. Bartolo was gesticulating and talking rubbish on the Magruvision Television set while I lay sprawled on the floor gesticulating like a madman. And I did all this so that I may have enough material for ‘ MHUX ’. To persuade Mrs Grech that nothing was really wrong with me I had to allow her to take my pulse rate, examine my tongue and take my temperature." 11. On 13 January 1986 Mr Debono Grech and Mr Bartolo, two of the Members of Parliament referred to, brought the article to the attention of the House of Representatives as an alleged breach of privilege. On 10 February, before the applicant had been heard, the Speaker announced that he had examined the matter and found a prima facie case of breach of privilege. The House, on a proposal by Mr Debono Grech, proceeded on the same day to pass a resolution which stated that the House considered the article in question as a breach of its privileges according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance (Chapter 179 of the Revised Edition of the Laws of Malta; see paragraph 20 below), hereinafter referred to as "the Ordinance". 12. On 4 March 1986 the House of Representatives considered a motion, proposed by Dr Joseph Cassar and seconded by Mr Debono Grech, to direct the applicant to be summoned by notice under section 13(2) of the Ordinance to answer a charge of defamatory libel under section 11(1)(k) of the Ordinance. The terms of the motion were: "That the House after having by its own resolution decided in the sitting of 10 February 1986 that the article bearing the title ‘ Mix- Xena tax- Xandir ’ which appeared at page 4 of the ‘ MHUX fl- Interesstal-Poplu ’ of 3 January 1986 be considered a breach of privilege according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance; The House orders Carmel Demicoli of Flat 1, Ferrini Court, University Street, Msida, as editor of the journal ‘ MHUX fl- Interesstal-Poplu ’, to appear before it in the sitting of 17 March 1986 at 6.30 pm to state why he should not be found guilty of breach of privilege according to section 11(1)(k) of the House of Representatives (Privileges and Powers) Ordinance; and The House also orders the subpoena of every witness that the Clerk of the House will be asked to summon." The then Leader of the Opposition, Dr Fenech Adami, drew attention to the wording of the resolution of 10 February 1986 which he considered out of order since it did not make it clear that there was only a prima facie case of breach of privilege. For his part, Dr Cassar expressed the opinion that the proposed motion did not state that the applicant was guilty: "Here we are not saying that he is guilty. We are saying: Come here so that on the 17th of March you will say why you are not guilty. And if ever you were to convince us that you are not guilty we will say that you are not guilty; if you will not convince us we will say you are guilty." After the debate the motion was adopted as proposed by Dr Cassar. 13. On 13 March 1986 Mr Demicoli brought an application before the Civil Court of Malta in exercise of its constitutional jurisdiction challenging the proceedings instituted against him by the House of Representatives on the ground that these proceedings, which were penal in nature, violated his right under section 40 of the Constitution (see paragraph 22 below) to be given a fair hearing by an independent and impartial court. 14. On 17, 18 and 19 March 1986, before the delivery of the judgment of the Civil Court, the applicant appeared before the House of Representatives with his lawyer. It was submitted as a point of order that further proceedings on the case in the House should be suspended until the court had determined the constitutional issue, but the Speaker ruled that the House should proceed with the case before it. The question was then put to the applicant, "Does the editor consider himself to be guilty or not please? Mr Demicoli, do you consider yourself guilty?" When the applicant refused to answer whether he was guilty or not, he was threatened with further proceedings for contempt. One of the members of the House, Dr Joseph Brincat, stated on a point of order that the breach of privilege proceedings were to be considered as being of a criminal nature and accordingly - an argument accepted by the Speaker - the rule of criminal procedure that he who stands mute is presumed to have answered ‘ not guilty ’ should be applied. Dr Cassar proceeded to adduce the evidence against the applicant, reading out the impugned article and concluding that it insulted Mr Debono Grech and Mr Bartolo in connection with their conduct in the House. The latter were invited by the Speaker to comment and both made statements to the effect that they considered themselves ridiculed in their capacity as members of the House, as well as in their private lives. Mr Debono Grech subsequently said, "Mr Speaker, this is the last time I come here and go to Court in connection with this dirt. And if they attack me personally I will neither seek redress here nor go to court. Okay? And if trouble crops up in my family, if you [pointing to defence lawyer] defend him [the applicant], I will [ ‘ sue you ’ (according to the Government ’ s translation)] [ ‘ take my revenge on you ’ (according to the applicant ’ s translation)]." On 19 March 1986 the House adopted a resolution in the following terms: "That the House after having considered the case of breach of its privileges caused by the article published at page 4 of the journal ‘ MHUX fl- Interesstal-Poplu ’ Number 63 of 3 January 1986; Finds the editor Carmel Demicoli guilty of breach of privilege." The House postponed the question of punishment until another sitting, due, according to the Government, to the pending constitutional proceedings. 15. On 16 May 1986 the Civil Court delivered judgment in favour of the applicant. It began by finding that the proceedings were not criminal in nature: "The House of Representatives is not an ordinary court, although, because of the system of checks and balances already referred to, it also has quasi-judicial functions, apart from its principal function of legislator. And the law that provides for the privileges and contempt of the House (chapter 179) is not part of the criminal law of the country. It is true, as argued by the applicant, that there is a great resemblance between the penalties provided for by the Criminal Code and those provided for by this particular law. However, the decision of the House is not the criminal conviction that emerges from a decision of the Criminal Court, and the declaration of guilt for contempt and the consequential sanctions from such a declaration, despite having the same form as criminal penalties - admonitions, payment of money, imprisonment - are nonetheless not criminal convictions." However, the Court continued: "The House may take proceedings for contempt where, among other things, there results: ‘ (k) the publication of any defamatory libel on the Speaker or any Member touching anything done or said by him as Speaker or as a Member in the House or in a Committee thereof; ’ (Vide sect. 11 Chapter 179). For the House to have jurisdiction to take proceedings for contempt there must be a defamatory libel (a mixed question of fact and law) and the law did not state that this is a question that must be established by the House, but something that must exist objectively; this being so, the declaration of the existence of the defamatory libel must first be made objectively by the Court, and then there will be proceedings in the House for contempt." The Civil Court concluded that the Ordinance in question did not authorise the House of Representatives of its own initiative to define what is a defamatory libel, and that, if and when it acts upon a contempt, it must act according to the principles of natural justice. It ordered that the applicant be placed in the position in which he was before proceedings were instituted against him on the basis of breach of privilege and that no further proceedings be taken against him on the basis of the resolution and motion in question. 16. On 13 October 1986 the Constitutional Court, on appeal by both parties, disagreed with the conclusions of the Civil Court. It held that the Constitution authorised Parliament to enact laws establishing its privileges, immunities and powers, that accordingly the powers given to the House by virtue of Chapter 179 of the Laws of Malta did not violate the person ’ s right to a fair hearing by an independent court as guaranteed under section 40 of the Constitution and that in those circumstances the lower court had not been entitled to look further into the matter or to afford the remedies indicated in its judgment. 17. On 9 December 1986 the House of Representatives summoned the applicant before it in order to decide the penalty to be imposed upon him. On being asked if he wished to comment, the applicant stated through his lawyer that he had nothing to say regarding the punishment but would comply with the House ’ s decision. He was fined 250 Maltese liri and ordered to publish the resolution of 19 March 1986 in his paper. 18. Mr Debono Grech and Mr Bartolo participated throughout in the proceedings brought against the applicant, save that Mr Bartolo died before the sitting of 9 December 1986. 19. The applicant has not as yet paid the fine and no steps have been taken to enforce its recovery. | The applicant, editor of a political satirical periodical, who had been found guilty of breach of privilege by the House of Representatives concerning alleged defamation of Members of the House, submitted in particular that in the proceedings before the House he had not received a fair hearing by an independent and impartial tribunal. |
718 | Right to life and prohibition of torture and inhuman or degrading treatment | 2. The applicant was born in 1981 and is currently detained at the Corradino Correctional Facility (‘CCF’), Paola. The applicant was represented by Mr W. Jordash, a lawyer practising in the Hague, the Netherlands. 3. The Government were represented by their Agents, Dr C. Soler, State Advocate, and Dr J. Vella, Advocate at the Office of the State Advocate. 4. The facts of the case may be summarised as follows. BACKGROUND TO THE CASE 5. The applicant is a businessman and the former head of the Tumas Group. He was arrested on his yacht on 20 November 2019 on suspicion of involvement in the murder of Maltese journalist Daphne Caruana Galizia in October 2017. On the same day he was released on bail. 6. On 30 November 2019 the applicant was arraigned before the Court of Magistrates acting as a court of criminal inquiry, and was accused of promoting, organising or financing an organisation with a view to committing a criminal offence, and complicity in wilful homicide. The applicant pleaded not guilty to the charges. He was remanded in custody and has since then been detained in the CCF, Paola, Malta. CONSTITUTIONAL REDRESS PROCEEDINGS 7. Following the refusal of a number of requests for release, the last ones (at the time) being rejected in April 2020 (see for details Fenech v. Malta (dec.) no. 19090/20, §§ 4-33, 23 March 2021) on 1 May 2020 the applicant instituted constitutional redress proceedings seeking a declaration of breaches of Articles 5 § 1 (c) and 5 § 3 and 5 § 4 of the Convention and asked the court to release him. The proceedings came to an end by a judgment of 23 November 2020 by which the Constitutional Court rejected the applicant’s complaints. The applicant had not raised any complaints under Articles 2 or 3 of the Convention during these proceedings, as he considered that constitutional redress proceedings would not be an appropriate remedy given their duration and the urgency of the matter. OTHER RELATED PROCEEDINGS 8. On 17 November 2020, the applicant’s legal counsel at the domestic level (CM) filed an application before the Court of Magistrates asking for the court’s protection in view of the prison authorities’ refusal to allow the lawyer even to show certain documents to the applicant. According to the applicant, in its decree of 23 November 2020 (not submitted to the Court), the court observed that a lawyer should not be prevented from taking documents with him to prison in order to discuss them with the detainee. However, the court also observed that, pursuant to Regulation 54(1) of the Prisons Regulations, any document may be read or examined by the Director if he suspects that such correspondence is unrelated to the proceedings. 9. On 23 November 2020 the applicant filed a further application before the Court of Magistrates by which he sought an order by the court to ensure confidential communications whilst he was in detention. He pointed out his lack of opportunity to communicate verbally or in written form with his lawyers, the lack of any opportunity to bring and show documents to him in prison, and to have a secure telephone line without recording. According to the applicant, in its decree of 24 November 2020 (not submitted to the Court), the Court of Magistrates declined to intervene, claiming that the issue was solely within the jurisdiction of the Director of Prisons, and the court had no jurisdiction to intervene on issues concerning the management of the prison or the implementation of the relevant legal provisions regulating the prison facility. With particular reference to the request for an unrecorded telephone line, the court denied the request, referring to Regulation 59 of the Prisons Regulations, which specifically allowed the monitoring and recording of all conversations in prison. 10. The applicant did not lodge constitutional redress proceedings complaining about the above. CONDITIONS OF DETENTION AT THE CORRADINO CORRECTIONAL FACILITY 11. In his application to the Court the applicant claimed that ever since he had been remanded in custody, he had endured a mixture of abusive, unsanitary and unhealthy conditions of detention as follows. 12. According to the applicant, from 30 November 2019 to 3 January 2020, he was placed in solitary confinement. During that time i) he was not given any warm clothing or socks, was left in a cell in used shorts and T-shirt provided by the prison and refused access to his own clothing; ii) he did not have proper bedding in his cell, which had a makeshift bed which was a piece of foam on the floor, without any sheets or pillows; iii) he was forced to use a hole in the ground of his cell as a bathroom, and there was no provision for flushing, and no hand basins to wash his hands; iv) the cell had only artificial lighting, and the neon tube was left on twenty-four hours and seven days a week; v) the applicant was only allowed sixty minutes out of his cell a day, within which time he was expected to eat, wash up, clean his cell, and finally take a break. During this break, the applicant was not allowed to go outside for fresh air or sunlight, and his movement was restricted to visiting another room; vi) he was not given any water or cigarettes from 10 p.m. ‑ 6 a.m.; and was not allowed access to any books from the library for the first twenty-seven days. 13. Since 4 January 2020 onwards, the applicant was moved to a dormitory, the conditions of which he also considered unsanitary and unhealthy. He shared his cell with four or five other detainees (whose identity could change). The cell measured 34.8 sq.m. (sic.) and each detainee had less than 4 sq.m. of free space. The detainees slept on bunk beds and shared a toilet, shower, and handbasin. They had to wash their clothes, dishes and plates in the same handbasin. The applicant was not allowed to use the gym for exercise. Instead, he was able to walk in a yard for thirty minutes per day. The remainder of the day, he was confined to the shared cell. 14. The applicant submitted that he was in daily contact with guards (who were rotated every week) and nurses and a chaplain (who also rotated). On any single day, the applicant was exposed to ten persons who left the prison at least weekly. The applicant was not allowed to go to mass or church; was subjected to CCTV surveillance in his cell; was deprived of family visits and was only allowed to speak to his family by Skype once (according to his application). While he was able to discuss legal issues with his counsel on a confidential basis in person, all legal documents were (temporarily) seized and could be read or photocopied by the prison authorities. Moreover, confidential meetings with the applicant and his lawyers were under surveillance through a CCTV. THE APPLICANT’S MEDICAL BACKGROUND 15. The applicant was, at the time of lodging the application in 2020, thirty-eight years of age and has only one kidney. On 12 April 2020, a Consultant Surgeon AA wrote a report (submitted to the Court at the time of lodging the application) stating that the applicant was “susceptible in any infective situation such as Corona virus infection leading to Covid-19 which has been shown to be associated not only with respiratory complications but also with the development of renal complications which will be aggravated in a patient like the applicant who at present already has a reduced renal reserve as a consequence of only having one kidney”. | The applicant in this case was a businessman who had been arrested, in November 2019, on suspicion of involvement in the murder of Maltese journalist Daphne Caruana Galizia in October 2017 and had since then been remanded in custody. The case concerned his conditions of detention in the Corradino Correctional Facility and whether the Maltese authorities had taken adequate measures to protect him from contracting Covid-19 whilst in prison, in particular because he had only one kidney. |
147 | Abortion | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1971 and lives in Warsaw. 8. Since 1977 the applicant has suffered from severe myopia, the degree of which was established at - 0.2 in the left eye and - 0.8 in the right eye. Before her pregnancy, she was assessed by a State medical panel, for social- insurance purposes, as suffering from a disability of medium severity. 9. The applicant became pregnant in February 2000. She had previously had two children, both born by Caesarean section. As the applicant was worried about the possible impact of the delivery on her health, she decided to consult her doctors. She was examined by three ophthalmologists (Dr M.S., Dr N. S. - B., Dr K.W.). It transpired from the documents submitted by the applicant that Dr M.S. had recommended that the applicant have frequent check -ups and avoid physical exertion. Dr N. S.-B. stated that the applicant should consider sterilisation after the birth. All of them concluded that, due to pathological changes in the applicant ’ s retina, the pregnancy and delivery constituted a risk to her eyesight. However, they refused to issue a certificate for the pregnancy to be terminated, despite the applicant ’ s requests, on the ground that the retina might detach itself as a result of pregnancy, but that it was not certain. 10. Subsequently, the applicant sought further medical advice. On 20 April 2000 Dr O.R. G., a general practitioner (GP), issued a certificate stating that her third pregnancy constituted a threat to the applicant ’ s health as there was a risk of rupture of the uterus, given her two previous deliveries by Caesarean section. She further referred to the applicant ’ s short- sightedness and to significant pathological changes in her retina. These considerations, according to the GP, also required that the applicant should avoid physical strain which in any case would hardly be possible as at that time the applicant was raising two small children on her own. The applicant understood that on the basis of this certificate she would be able to terminate her pregnancy lawfully. 11. On 14 April 2000, in the second month of the pregnancy, the applicant ’ s eyesight was examined. It was established that she needed glasses to correct her vision in both eyes by 24 dioptres. 12. Subsequently, the applicant contacted a State hospital, the Clinic of Gynaecology and Obstetrics in Warsaw, in the area to which she was assigned on the basis of her residence, with a view to obtaining the termination of her pregnancy. On 26 April 2000 she had an appointment with Dr R.D., Head of the Gynaecology and Obstetrics Department of the clinic. 13. Dr R.D. examined the applicant visually and for a period of less than five minutes, but did not examine her ophthalmological records. Afterwards he made a note on the back of the certificate issued by Dr O.R.G. that neither her short ‑ sightedness nor her two previous deliveries by Caesarean section constituted grounds for therapeutic termination of the pregnancy. He was of the view that, in these circumstances, the applicant should give birth by Caesarean section. During the applicant ’ s visit Dr R.D. consulted an endocrinologist, Dr B., whispering to her in the presence of the applicant. The endocrinologist co-signed the note written by Dr R.D., but did not talk to the applicant. 14. The applicant ’ s examination was carried out in a room with the door open to the corridor, which, in the applicant ’ s submission, did not provide a comfortable environment for a medical examination. At the end of the appointment, Dr R.D. told the applicant that she could have as many as eight children if they were delivered by Caesarean section. 15. As a result, the applicant ’ s pregnancy was not terminated. The applicant gave birth to the child by Caesarean section in November 2000. 16. After the delivery, her eyesight deteriorated badly. On 2 January 2001, approximately six weeks after the delivery, she was taken to the emergency unit of the Ophthalmological Clinic in Warsaw. While doing a counting- fingers test, she was only able to see from a distance of three metres with her left eye and five metres with her right eye, whereas before the pregnancy she had been able to see objects from a distance of six metres. A reabsorbing vascular occlusion was found in her right eye and further degeneration of the retinal spot was established in the left eye. 17. According to a medical certificate issued on 14 March 2001 by an ophthalmologist, the deterioration of the applicant ’ s eyesight had been caused by recent haemorrhages in the retina. As a result, the applicant is currently facing a risk of going blind. Dr M.S., the ophthalmologist who examined the applicant, suggested that she should be learning braille. She also informed the applicant that, as the changes to her retina were at a very advanced stage, there were no prospects of having them corrected by surgical intervention. 18. On 13 September 2001 the disability panel declared the applicant to be significantly disabled, while previously she had been recognised as suffering from a disability of medium severity. It further held that she needed constant care and assistance in her everyday life. 19. On 29 March 2001 the applicant lodged a criminal complaint against Dr R.D., alleging that he had prevented her from having her pregnancy terminated as recommended by the GP on a medical ground which constituted one of the exceptions to a general ban on abortion. She complained that, following the pregnancy and delivery, she had sustained severe bodily harm by way of almost complete loss of her eyesight. She relied on Article 156 § 1 of the Criminal Code, which lays down the penalty for the offence of causing grievous bodily harm, and also submitted that, under the applicable provisions of social - insurance law, she was not entitled to a disability pension as she had not worked the requisite number of years before the disability developed because she had been raising her children. 20. The investigation of the applicant ’ s complaint was carried out by the Warsaw-Śródmieście district prosecutor. The prosecutor heard evidence from the ophthalmologists who had examined the applicant during her pregnancy. They stated that a safe delivery by Caesarean section had been possible. 21. The prosecutor further requested the preparation of an expert report by a panel of three medical experts (ophthalmologist, gynaecologist and specialist in forensic medicine) from the Białystok Medical Academy. According to the report, the applicant ’ s pregnancies and deliveries had not affected the deterioration of her eyesight. Given the serious nature of the applicant ’ s sight impairment, the risk of retinal detachment had always been present and continued to exist, and the pregnancy and delivery had not contributed to increasing that risk. Furthermore, the experts found that in the applicant ’ s case there had been no factors militating against the applicant ’ s carrying her baby to term and delivering it. 22. During the investigations neither Dr R.D. nor Dr B., who had co ‑ signed the certificate of 26 April 2000, were interviewed. 23. On 31 December 2001 the district prosecutor discontinued the investigations, considering that Dr R.D. had no case to answer. Having regard to the expert report, the prosecutor found that there was no causal link between his actions and the deterioration of the applicant ’ s vision. He observed that this deterioration “had not been caused by the gynaecologist ’ s actions, or by any other human action”. 24. The applicant appealed against that decision to the Warsaw regional prosecutor. She challenged the report drawn up by the experts from the Białystok Medical Academy. In particular, she submitted that she had in fact been examined by only one of the experts, namely the ophthalmologist, whereas the report was signed by all of them. During that examination use had not been made of all the specialised ophthalmological equipment that would normally be used to test the applicant ’ s eyesight. Moreover, the examination had lasted only ten minutes. The other two experts who had signed the report, including a gynaecologist, had not examined her at all. 25. She further emphasised inconsistencies in the report. She also submitted that, before the second and third deliveries, the doctors had recommended that she be sterilised during the Caesarean section to avoid any further pregnancies. She argued that, although the deterioration of her eyesight was related to her condition, she felt that the process of deterioration had accelerated during the third pregnancy. She submitted that there had been a causal link between the refusal to terminate her pregnancy and the deterioration of her vision. The applicant also complained that the prosecuting authorities had failed to give any consideration to the certificate issued by her GP. 26. She further pointed out that she had been unable to familiarise herself with the case file because the summaries of witnesses ’ testimonies and other documents were written in a highly illegible manner. The prosecutor, when asked for assistance in reading the file, had repeatedly refused to assist, even though he had been aware that the applicant was suffering from very severe myopia. The applicant had been unable to read the documents in the case file, which had affected her ability to exercise her procedural rights in the course of the investigation. 27. On 21 March 2002 the Warsaw regional prosecutor, in a one-paragraph decision, upheld the decision of the district prosecutor, finding that the latter ’ s conclusions had been based on the expert report. The regional prosecutor countered the applicant ’ s argument that she had not been examined by all three experts, stating that the other two experts had relied on an examination of her medical records. He did not address the procedural issue raised by the applicant in her appeal. 28. Subsequently, the decision not to prosecute was transmitted to the Warsaw-Śródmieście District Court for judicial review. 29. In a final decision of 2 August 2002, not subject to a further appeal and numbering twenty-three lines, the District Court upheld the decision to discontinue the case. Having regard to the medical expert report, the court considered that the refusal to terminate the pregnancy had not had a bearing on the deterioration of the applicant ’ s vision. Furthermore, the court found that the haemorrhage in the applicant ’ s eyes had in any event been likely to occur, given the degree and nature of the applicant ’ s condition. The court did not address the procedural complaint which the applicant had made in her appeal against the decision of the district prosecutor. 30. The applicant also attempted to bring disciplinary proceedings against Dr R.D. and Dr B. However, those proceedings were finally discontinued on 19 June 2002, the competent authorities of the Chamber of Physicians finding that there had been no professional negligence. 31. Currently, the applicant can see objects only from a distance of approximately 1.5 metres and is afraid of going blind. On 11 January 2001 the social- welfare centre issued a certificate to the effect that the applicant was unable to take care of her children as she could not see from a distance of more than 1. 5 metres. On 28 May 2001 a medical panel gave a decision certifying that she suffered from a significant disability. She is at present unemployed and in receipt of a monthly disability pension of 560 Polish zlotys. She is raising her three children alone. | The applicant was refused a therapeutic abortion, after being warned that her already severe myopia could worsen if she carried her pregnancy to term. Following the birth of her child, she had a retinal haemorrhage and was registered severely disabled. |
1,056 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. Mrs Liliane Hentrich, who is a French national, lives in Strasbourg. 7. On 11 May 1979 she and her husband, Mr Wolfgang Peukert, bought 6,766 square metres of land in Strasbourg for a total sum of 150,000 French francs (FRF). Further building was not permitted on the land, which was entered in the land register in several different parcels: 2,126 sq. m of land, 406 sq. m of ground, house and appurtenant buildings, 130 sq. m of ground and cowshed, 2,353 sq. m of garden, ground and shed, and 1,751 sq. m of garden. 8. The sale was concluded on the condition precedent that the SAFER (Regional Development and Rural Settlement Corporation) of Alsace did not exercise its right of pre-emption over the property within two months. The main tax office at Molsheim registered the sale on payment of duties, firstly on 28 May 1979 and then on 13 August 1979, when the sale took effect on expiry of the statutory time allowed for the SAFER to exercise its right, which it had not done. A. The pre-emption 9. On 5 February 1980 Mrs Hentrich and her husband were notified by a bailiff of the following decision: "As [the Commissioner of Revenue] considers the sale price declared in the contract of sale ... to be too low, he is exercising, for the benefit of the Treasury and with all the effects it entails, the right of pre-emption provided for in Article 668 of the General Tax Code over all the real property and appurtenant rights [acquired by them] ... [the Commissioner of Revenue] offers to pay [the buyers] or any other rightful claimant (a) the price specified in the contract of sale, (b) the ten per cent premium provided for in law, and (c) the costs and fair expenses of the contract on production of all the appropriate vouchers." B. The challenging of the pre-emption in the courts 1. The proceedings in the Strasbourg tribunal de grande instance 10. On 31 March 1980 the applicant and her husband instituted proceedings in the Strasbourg tribunal de grande instance against the Commissioner of Revenue for the département of Bas- Rhin. They sought to have the pre-emption set aside on the grounds that the time-limit for exercising the right had not been complied with, the notification had been null and void (this ground was not pursued at the hearing) and there had been a misuse of powers and a breach of the Convention and of Protocol No. 1. In the alternative, they applied for an assessment by a court expert of the market value of the property in issue and an examination of the sellers. 11. The tribunal de grande instance gave judgment against them on 16 December 1980. It ruled that the time allowed for exercising the right of pre-emption had begun to run on 13 August 1979 and it held that the State could not be blamed for not having exercised its right of pre-emption so long as the sale had not taken effect and was subject to the condition precedent. 12. It rejected the complaints based on the Convention in the following terms: "As to the breach of the Convention ... allegedly constituted by the right of pre-emption in Art. 668 of the GTC [General Tax Code] ... If the Court were to conclude on that account that Article 668 GTC conflicted with the provisions of the Human Rights Convention, [the plaintiffs] could legitimately maintain that the French courts must in future refuse to apply Article 668 GTC. ... [The plaintiffs] began by arguing that Article 668 GTC was blatantly inconsistent with Article 1 para. 1 of the Protocol to the Convention (P1-1), which provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions and that no one shall be deprived of his possessions except in the public interest. But the Article referred to has a second paragraph, which provides: ‘ The preceding provision shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary ... to secure the payment of taxes ... ’ It so happens that the French State, faced with tax evasion on an increasingly large scale, has felt obliged to enact the provisions of Article 668 GTC. By means of that Article the State hopes to ensure proper payment of the duties levied on contracts of sale. The impugned enactment is therefore not inconsistent with the provisions relied on. [The plaintiffs] went on to argue that Article 668 fell foul of Article 6 para. 2 (art. 6-2) of the Convention ..., which provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law; that the exercise of the right of pre-emption by the Revenue was a penalty for a ‘ presumed offence of tax evasion ’; and that they were therefore regarded, by the very fact of the right of pre-emption having been exercised, as tax evaders with all that that implies in the way of disgrace and without their having any possibility of exculpating themselves. Article 668, however, states that the Revenue may exercise a right of pre-emption over property sold at a price it considers too low. It is therefore not necessary to prove tax evasion before this provision can be applied. It is sufficient for the price to appear to the Revenue to be too low without its having to determine the reason why it is too low, which may in fact have nothing to do with tax evasion (e.g. ignorance of the real value or kindness). Admittedly, the provision was enacted solely to counter tax evasion, but those to whom it is applied are nevertheless not necessarily tax evaders and cannot be regarded as such; no penalty is imposed on them and the State even pays them 10% more than the price they paid. This 10% premium has been provided for precisely because it may inadvertently happen that the right of pre-emption is applied in cases where there has been no attempt to evade tax by the persons concerned. [The plaintiffs] are therefore wrong to regard themselves as disgraced and as having been punished for committing tax evasion. [The plaintiffs] also alleged a breach of Article 6 para. 1 (art. 6-1) of the Convention ..., which lays down that a punishment can be imposed only after a hearing of the person whose rights are disputed or who is charged with a criminal offence. But Article 668 GTC in no way disputes the rights of anyone who has acquired a property and the purchaser is not charged with any offence. The provision merely confers a privilege on the State for the purpose of ensuring that taxes are paid. It is therefore not necessary, as [the plaintiffs] maintained, to allow them to prove that they paid the proper price and did not conceal any payment. Lastly, [the plaintiffs] asserted that they were the victims of a discriminatory measure prohibited by Article 14 (art. 14) of the Convention ...; and that the measure was discriminatory in relation to other buyers of neighbouring properties at almost identical prices, against whom the Revenue had not exercised its right of pre-emption. But the Revenue has complete freedom to exercise its right of pre-emption as it wishes. There is no evidence before the Court to support the contention that the State was influenced by considerations of race, nationality, language, political opinion or any of the other criteria referred to in Article 14 (art. 14) of the Convention. ..." 2. The proceedings in the Colmar Court of Appeal 13. The applicant and her husband appealed to the Colmar Court of Appeal on 23 January 1981. On 4 December 1981 the judge responsible for preparing the case for trial directed them to make their submissions by 5 February 1982. After securing an extension of time until 7 May, the applicants filed pleadings on 29 April 1982 in which they reiterated the arguments they had adduced at first instance. They supplemented their complaint of discriminatory treatment by pointing out that there was another piece of land that could, they said, have been pre-empted and by criticising the Revenue for having chosen the special procedure of pre-emption instead of the ordinary procedure of making a supplementary tax assessment. Lastly, they argued that the decision to exercise the right of pre-emption did not contain the reasons required by section 3 of Law no. 79-587 of 11 July 1979 (see paragraph 22 below). 14. The Revenue filed its pleadings on 3 February 1983, as the judge responsible for preparing the case for trial had requested on 5 November 1982. The time-limit of 5 May 1983 that was given to the applicant and her husband for their reply was put back to 3 June and then 7 October. They filed their submissions on 19 September 1983. The pre-trial proceedings were concluded on 6 January 1984. 15. The Colmar Court of Appeal held a hearing on 21 January 1985 and gave judgment on 19 February 1985. It upheld the lower court ’ s determination of the date on which the time allowed for exercising the right of pre-emption had begun to run and dismissed the appeal for the following reasons: "The ground of appeal alleging that the notification of 5 February 1980 was unlawful because it did not, as required by section 3 of Law no. 79-587 of 11 July 1979, give any reasons must be rejected, account having been taken of the fact that it does not appear sufficiently substantial to constitute a preliminary point of administrative law, seeing that the notification appears to set out the legal basis and the reason of fact which prompted the Revenue to exercise the right of pre-emption. For the rest, the Court, without the slightest hesitation, adopts the excellent reasons for which the court below rejected the grounds relating, firstly, to the misuse of powers of which the Revenue was allegedly guilty by acting speculatively and, secondly, to the contravening by Article 668 of the General Tax Code of several fundamental principles laid down in the Convention ..." 3. The proceedings in the Court of Cassation 16. The applicant and her husband appealed on points of law on 13 June 1985 and filed supplementary pleadings on 13 November. They argued two grounds of appeal, the first based on failure to comply with the time-limit for exercising the right of pre-emption and the second on breaches of Article 1 of Protocol No. 1 (P1-1) and Article 6 paras. 1 and 2 (art. 6-1, art. 6-2) of the Convention. In support of the second ground - the only relevant one here - they maintained, firstly: "... It appears from reading these provisions [Article 1 of Protocol No. 1 and Article 6 para. 1 of the Convention (P1-1, art. 6-1)] together that no one can be deprived of his property, even by a tax law, without being able to defend himself in court proceedings. The fact remains, however, that the right of pre-emption conferred by Article 668 of the GTC (which has become Article L.18 of the Tax Proceedings Code) is exercised at the discretion of the State, which does not have to prove the allegation that the price was too low, and that this provision does not allow a dispossessed purchaser to show that he acted in good faith or that the price in question was a normal one. In the instant case the Court [of Appeal], which noted that the State ’ s right was a discretionary one and that it was impossible for the expropriated party to be heard in his own defence and still concluded that Article 668 of the GTC conformed with the provisions of Article 1 of the First Protocol and Article 6 para. 1 (P1-1, art. 6-1) of the ... Convention ..., did not draw from its own findings the legal conclusions which followed from them and thus breached the aforementioned provisions ..." They went on: "Article 6 para. 2 (art. 6-2) of the ... Convention ... provides: ‘ Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. ’ It is established that the purpose of Article 668 of the GTC is to prevent tax evasion and it provides for a penalty in respect of those guilty of it. In the instant case the Court [of Appeal], which refused to recognise that this was the purpose and nature of the State ’ s pre-emption so as not to apply to the State the provisions of Article 6 para. 2 (art. 6-2) of the Convention, misunderstood the meaning and scope of Article 668 of the GTC (which has become Article L.18 of the Tax Proceedings Code) and accordingly breached that provision. Lastly, the Court [of Appeal], which noted that the Revenue could exercise its right of pre-emption without having to prove the expropriated party ’ s guilt and without that party being able to prove his innocence, but still considered that such a measure did not contravene Article 6 para. 2 (art. 6-2) of the Convention, breached that provision in refusing to apply it." 17. The Revenue ’ s defence was registered on 7 March 1986. The reporting judge, who was appointed on 18 April 1986, filed his report on 18 November 1986. The advocate-general was chosen on 2 January 1987. Initially heard on 31 March 1987, the case was transferred on 19 May 1987 to a full court of the Court of Cassation ’ s Commercial Division. 18. On 16 June 1987 the Court of Cassation (Commercial Division) delivered four leading judgments, including one dismissing the applicant and her husband ’ s case. As to the ground of appeal relating to the breach of provisions of the Convention, it said: "... in the first place, where the Revenue exercises the powers vested in it by Article 668 of the General Tax Code, the dispossessed purchaser may ask a court to rule on a challenge by him seeking to establish that the conditions for applying the aforementioned provision were not satisfied. In the second place, exercising the State ’ s right of pre-emption as provided by the aforementioned Article 668 does not imply that the dispossessed purchaser has committed a criminal offence, from which it follows that the exercise of this right was not within the contemplation of Article 6 para. 2 (art. 6-2) of the Convention ... The ground of appeal is therefore unfounded in every limb." 19. Since 1981, it has been possible to build on the land, subject to conditions. The land has not been resold but has been left at the disposal of a neighbouring market gardener. Its current value is in the region of FRF 330 per square metre. | In May 1979 the applicant and her husband bought 6,766 square metres of non-building land. The sale was concluded on the condition precedent that the SAFER (Regional Development and Rural Settlement Corporation) did not exercise its right of pre-emption over the property within two months. The main tax office registered the sale on payment of duties and the sale took effect when the SAFER failed to exercise its right of pre-emption within the statutory time. In February 1980 the applicants were notified by a bailiff of the decision to pre-empt. The applicant claimed that the exercise of the right of pre-emption had been an unjustified interference with her right of property. She also complained that the Revenue and the courts had not given her a fair hearing. |
206 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lives in Bucharest. 6. At the relevant time he had the rank of Brigadier- General and was serving as a doctor at the emergency military hospital of Bucharest. A. The applicant ’ s arrest after being caught in the act of committing an offence 7. On 19 December 2003 the directorate general of prisons launched a recruitment competition for the post of specialist military doctor at the prison of Bucharest-Jilava. Six individuals were candidates, including a certain T.G. Preliminary interviews were conducted by N.D., a doctor with the rank of Lieutenant - Colonel, who was put in charge of setting up the board of examiners. N.D. invited the applicant to chair the board. 8. N.D. prepared all the necessary documentation for the competition, including the envelope containing the examination papers. She was supposed to take the envelope to the examination venue on 3 May 2004, at 7. 15 a.m. 9. After the preliminary interviews with the candidates, N.D. contacted T.G. under a false identity to offer to help her succeed in the competition. When asked by T.G. how she could help her, N.D. told her that she could intervene in her favour at the level of the board of examiners. A number of meetings took place between T.G. and N.D., who handed her copies of the examination papers. At one of the meetings N.D. mentioned the applicant ’ s name, stating that he was the chairman of the board. On 23 April 2004, during a further meeting with N.D., T.G. recorded the conversation. 10. On 30 April 2004 T.G. reported N.D. to the national prosecution service for corruption ( the “ PNA ” ), indicating that the latter had asked her for a sum of money in return for favourable treatment in the competition. She added that she had an agreement with N.D. to give her 1, 300 US dollars (USD) on the day of the examination, before the written test, then USD 1, 200 once she had been accepted for the post. 11. On the same day the PNA authorised the recording of conversations between T.G. and N.D. The banknotes that T.G. was supposed to give to N.D. were marked with a fluorescent substance. 12. On 3 May 2004, at 7. 05 a.m., N.D. was arrested in the act of receiving money from T.G. After being taken to the offices of the prosecution service, she was questioned and a report was drawn up concerning the discovery of an offence while it was being committed. N.D. stated that, as a member of the board of examiners, she had asked T.G. for a sum of money in exchange for her help in obtaining the post in question. She added that, on 27 April 2004, the applicant had given her the examination papers so that she could pass them on to a candidate who would be declared successful in return for USD 2, 500, a sum that she was supposed to remit to him on 3 May 2004 after the examination. N.D. stated that she had asked for the money in order to give it to the applicant. After being informed of the possibility of a reduction in sentence if she cooperated with the prosecution, N.D. indicated that her statement constituted an act of self-incrimination. She agreed to cooperate with the PNA in the prosecuting of the offence in respect of the applicant, by going to meet him after equipping herself with audio and video devices. 13. According to the applicant, N.D. had denounced him to the PNA after being threatened by the investigators who, during her questioning, had drawn her attention to the potential consequences of her actions for her family. 14. On the same day, at 8 a.m., the prosecutor authorised the audio and video recording of discussions between N.D. and the applicant, together with the bugging of a number of telephones used by him, for a period of twenty-four hours, from 3 May 2004 at 8 a.m. to 4 May 2004 at 8 a.m. The intercept authorisations of 30 April ( see paragraph 11 above ) and 3 May 2004 were endorsed by a judgment of the High Court of Cassation and Justice ( the “High Court” ) on 3 May 2004. 15. At 8. 17 a.m. N.D. called the applicant to inform him that she would be late. At 9. 30 a.m. N.D. arrived at the hospital and met the applicant in the corridor. She asked him to go into his office, placed the envelope with the money on his desk and left. 16. At 9 .40 a.m. officials from the prosecution service entered the applicant ’ s office. The investigators examined the applicant ’ s hands and clothing, using a fluorescent lamp, and observed traces of fluorescent substance on the fingers of his left hand. The objects on the applicant ’ s desk were then examined and traces of the same substance were detected. An envelope was found on the desk and the investigators asked the applicant to open it and deposit the contents on the table. The envelope contained the sum of USD 1, 300. 17. A report was drawn up concerning the discovery of the offence while being committed. It recorded the sequence of events, the material items identified and the applicant ’ s replies to questions from the investigators. The applicant ’ s statements were recorded as follows : “... When he [ the applicant ] was apprehended, the public prosecutor ... S.G. asked Dr Blaj Stefan, Brigadier- General, whether N.D. had left him anything. He replied in the affirmative, saying ‘ yes ’ and pointing to his desk. In the presence of the attesting witnesses ... and of Dr Blaj Stefan, Brigadier- General, formal note was taken of the offence that had just been committed. Dr Blaj Stefan, Brigadier- General, was asked to state what he had received from N.D., at the time when ... Lieutenant - General S.M. entered his office ... and when Lieutenant - Colonel S.G., legal officer, showed him the object of the offence ( obiectul care formează constatarea infracțiunii flagrante ). Subsequently Dr Blaj Stefan ... stated that N.D. had come to his office at the hospital, that she had said ‘ I have brought you the envelope ’ and that she had left it on the desk. He stated that, after N.D. had left, he had personally looked for some documents on his desk and had intended to leave his office to go to the toilet when he was stopped by Lieutenant - Colonel S.G., legal officer. ... When questioned, Dr Blaj Stefan explained that he did not possess any document concerning the examination scheduled for 3 May 2004, because the documents were at the technical secretariat of the directorate general for prisons ... ” 18. The report was signed by the applicant and by the two attesting witnesses present, without any objections. In the report, the applicant was mentioned as the “ person caught in the act of committing an offence ” ( făptuitor ). 19. The applicant was not informed at the time of that procedure of his right to legal assistance and to remain silent, or of any of the accusations against him. The discovery of the offence while being committed was recorded by audio and visual means. 20. The applicant was then taken to the headquarters of the PNA where he was informed, in his capacity as a “ person caught in the act of committing an offence ”, that preliminary investigative acts had been carried out against him and that he was entitled to legal assistance. Subsequently the prosecutor ordered that criminal proceedings be opened against the applicant and informed him of his right to remain silent. The applicant was assisted from that point onwards by a lawyer of his choosing. 21. Later on that same day, 3 May 2004, at 5 p.m., the prosecutor ordered that the applicant be taken into police custody for twenty-four hours, a measure that was subsequently extended by a period of detention on remand. The applicant was assisted by a lawyer of his choosing. The applicant ’ s detention on remand was then extended several times until 6 September 2004, when he was released. 22. On 5 May 2004 the intelligence services of the Ministry of the Interior transmitted reports to the prosecutor ’ s office concerning the recording of telephone calls intercepted on the applicant ’ s telephone. That information showed that the secret services had intercepted conversations which had taken place on 3 May 2004, at 3. 35 p.m., and on 4 May 2004, at 8. 50 a.m. As regards calls intercepted on 4 May 2004, after 8 a.m., a note in the investigation file gave the times of the calls with the indication that the numbers called had not been identified. 23. The transcription of the video-recorded conversation of 3 May 2004 between N.D. and the applicant, B.S., read as follows : “... N.D. ... I wanted ... to tell you that the exam papers are still those ... B.S. (interrupting N.D.) : Yes, I am going ... (unintelligible) ...? Have you got [ the exam papers]? N.D. : ... Yes! B.S. : OK. Put them on the table, they will take them from there ... N.D. : Yes ... B.S. : But we can ’ t do the practical part ... until Thursday morning! We are running very late, we won ’ t be able to do the marking! N.D. : Yes ... B.S. : At noon I have to be in Breaza. Yes? OK. N.D. : Euh... ( at that moment ... at the fourth minute of the video recording, N.D. takes from a bag she is holding a white envelope that she holds out to B.S. At the same time, N.D. says :) This is from ... the candidate! B.S. (covering N.D. ’ s words) : What? ( he then speaks softly) Put them there! ( on the video recording – at 04.01 and 04.03 – B.S. can be seen pointing to his office and the desk in question. B.S. then continues ) OK, come with me! ... N.D. : It ’ s part. ... the rest will be ... B.S. (interrupting N.D.) : But ... I have nothing ... It is up to you ( Deci, eu n ’ am comentat nimic ) ... N.D. : Yes ... B.S. : I have helped you, haven ’ t I? N.D. : Yes ... ... ” 24. During the criminal proceedings, the applicant was questioned in the presence of a lawyer of his choosing and he denied the charges. A confrontation took place at an unknown date between N.D. and the applicant, each one maintaining the position taken in their respective initial statements. The applicant was assisted by lawyers of his choosing throughout the ensuing criminal proceedings. B. The criminal proceedings against the applicant 25. On an indictment of 25 May 2004, the applicant was committed to stand trial in the Criminal Division of the High Court on a charge of soliciting bribes. He was charged with having, in his capacity as chairman of the board of examiners, asked T.G. through the intermediary of N.D. for the sum of USD 4, 000, subsequently reduced to USD 2, 500, in return for helping her in the examination, and with having, on 3 May 2004, received the sum of USD 1, 300 on that basis. In the same indictment, N.D. was committed to stand trial on a charge of complicity in soliciting bribes. 1. Proceedings at first instance before the High Court sitting in a three-judge formation 26. When questioned by the High Court, the applicant denied the charges against him. He stated that he had been convinced that the envelope left by N.D. on his desk contained the examination papers that N.D. was, according to him, supposed to give him that day. 27. On 27 May 2004 the applicant argued before the High Court that he had been the victim of entrapment by the investigative authorities. He indicated in that connection that, according to his first statement as recorded in the report on the discovery of the offence, N.D. had initially said that the money was intended for her. He took the view that it was only after been subjected for one hour to psychological pressure on the part of the investigators, who had repeatedly stressed that she would benefit from a reduction in sentence and had questioned her about her family, that N.D. had stated that the money was intended for him. He added that the report on the discovery of the offence could not constitute valid evidence, on the ground that it contained a statement that he had allegedly made immediately after being caught in the act of committing an offence, without having been informed by the prosecutor of his right to legal assistance. 28. When questioned by the High Court about the substance of the discussion he had had with N.D. just before being caught in the act of committing the offence, the applicant indicated that he had heard N.D. say something about a candidate but had not understood exactly what she had meant, as she had spoken softly and at a point when his attention had been distracted by a colleague going into the secretary ’ s office. 29. On 24 June 2004 the High Court questioned N.D. She stated that she had been caught in the act of committing an offence and that when the investigators had asked her whether the money was for her or for someone else, she had mentioned the applicant. She also indicated that she was not supposed to receive any money from the candidate and that all the money was intended for the applicant. She added that the investigators had asked her to follow up the procedure for the discovery of the offence while being committed and to take the money to the person for whom it was intended. The investigators had allegedly asked her to behave as if nothing had happened and to explain to the applicant that she had been delayed by a traffic accident. When she had hesitated, the investigators had allegedly told her that she could benefit from a reduction in sentence if she accepted. 30. On 8 July 2004 T.G. was questioned by the High Court. 31. On 21 March 2005 the High Court listened to and watched the audio and video recordings made by the prosecutor ’ s office during the commission of the offence, involving first T.G. and N.D., and second N.D. and the applicant, together with the filmed interview of N.D. after she was caught in the act of committing an offence. 32. On 18 April 2005 the hearings were resumed. The applicant repeated that he had been the victim of entrapment and that N.D. had made the statements in question, after being caught in the act of committing an offence, without legal assistance and under pressure from the investigators. He indicated that in the transcription of the recording of his discussions with N.D., the phrase “Put them on the table ... ” concerning the impugned envelope appeared in writing but was inaudible on the recording. 33. In a judgment of 25 May 2005, by a majority, the High Court, sitting in a three-judge formation, sentenced the applicant on the charge of soliciting bribes to a suspended term of one and a half years in prison. It based its decision on the report of the discovery of the offence while being committed by the applicant, on the statement of N.D. and on the audio and video recordings made when the applicant was caught in the act of committing the offence. ... 35. As to the applicant ’ s allegations that he should have had legal assistance from the time when he was first questioned by the public prosecutor in the procedure concerning the discovery of an offence while being committed, the High Court found as follows : “Under Article 171, paragraph 1, of the Code of Criminal Procedure, suspects or accused persons have the right to be assisted by a lawyer throughout the criminal proceedings, and the judicial authorities are obliged to inform them of that right. At the time of the drawing-up of the report concerning the discovery of an offence while being committed, the criminal proceedings had not yet been started in respect of Blaj Stefan, who did not even have the status of suspect. Accordingly the [said] report and the audio and video recordings made during the discovery of the offence will be admitted in evidence”. 36. After noting that the applicant had always denied the charges, the High Court found that his allegations were contradicted by the video and audio recordings. Based on that evidence, it noted that N.D. had held out the envelope to the applicant telling him loudly and clearly “ this is from the candidate”; it was thus obvious to the High Court that the applicant was perfectly aware of what was in the envelope and he had no reason to believe that an envelope from a candidate contained examination papers. It further noted that the applicant had pointed to where N.D. should place the envelope and that when she had started to explain that the rest would be remitted afterwards, he had interrupted her saying that it was up to her. 37. The High Court also found that the applicant ’ s statement that the envelope had then been covered by certain documents on the desk because he had tidied things up was contradicted by the verifications made using an ultraviolet lamp, which had revealed specific fluorescent traces leading to the conclusion that the applicant had not lifted the envelope to tidy the desk but that he had slid it under other documents to hide it. The High Court concluded that this evidence, together with the report on the discovery of the offence, proved that there had been a prior agreement between the applicant and N.D. 2. The appeal proceedings before the High Court sitting in a nine-judge formation 38. The applicant appealed against the first-instance judgment, seeking his acquittal and, in the alternative, a retrial before the first-instance court, arguing that there was no evidence that he had been aware of the content of the envelope in question. 39. He further argued that he had been the victim of entrapment on the part of the investigators. He pointed out that the evidence had been obtained illegally as a result of the pressure exerted for about two hours on N.D. by the investigators after she had been taken into police custody, without being informed of her procedural rights. 40. The applicant also indicated that the words “Put them there!” appeared in the transcripts whereas they were not, in his view, audible in the recording and that his discussion with N.D. before entering the office had not been transcribed, even though it would have shown that he had received N.D. in his office only upon her insistence. He further argued that the authorisations for recording his discussions with N.D. were not legal, on the ground that they had been issued before he was formally charged and had not been confirmed within the statutory time-limit by the President of the High Court. 41. He lastly indicated that he had not been assisted by a lawyer when he gave the first statement recorded in the report of the discovery of the offence. In this connection, he relied on the first paragraph of Article 467 of the Code of Criminal Procedure governing the discovery of an offence while being committed. He added that, under this Article, the prosecuting authority was required to draw up a report of the discovery of the offence containing the statements of the “ suspect and other persons questioned ”. He inferred from this that at the time the offence was committed he must have had the status of “ suspect ”, which meant that he should have been assisted by a lawyer or at least informed of that right. 42. The hearing took place on 25 September 2006. In a final judgment delivered on the same day, issued on paper on 22 January 2007, the High Court, sitting as a nine-judge formation, dismissed the applicant ’ s appeal. 43. The High Court found that, while it was clear that Article 467, paragraph 1, of the Code of Criminal Procedure was applicable in the present case, that did not, however, entail an obligation to prosecute before or at the same time as the discovery of the offence while being committed. In the court ’ s view, such an interpretation would render futile the relevant procedure as a whole, whereas the fact of being caught in the act of committing an offence formed the basis on which the criminal proceedings were then initiated. In addition, since the measure in which the above-mentioned legal provision provided for keeping a record of the statements of the suspect and other persons questioned, the person concerned would be questioned as the suspect only if the prosecution had already decided to bring proceedings against that person. If not, his or her statement would be recorded as that of “another person questioned ”. The High Court concluded on that point that, in view of the fact that at the time he was first questioned the applicant had been neither a suspect nor an accused person, there had been no statutory obligation for him to be assisted by a lawyer. Moreover, it noted that the applicant had been informed subsequently, in the presence of a lawyer of his choosing, that preliminary investigative acts ( acte premergătoare ) had been carried out against him in his capacity as a person caught in the act of committing an offence. 44. The High Court further found that the charges against the applicant had been fully substantiated by the video and audio recording of his meeting with N.D. on 3 May 2004. It noted the importance of their conversation on that occasion and the indicative nature of the applicant ’ s gesture in showing N.D. where to place the envelope, thus ruling out the possibility that he could have been the victim of entrapment. The High Court held that, even supposing that the sentence “Put them on the table” had not been audible in the recording, the words spoken by the applicant, and not disputed by him, both before and after the envelope was placed on the table, formed a context that left no room for doubt. 45. The court lastly found the recordings to be valid. In this connection it noted that in case of urgency the prosecutor was empowered to authorise recordings and that the court was required to confirm the authorisations within twenty-four hours, as it had done in the present case. 46. On 9 December 2010 the Criminal Division of the High Court rehabilitated the applicant upon his application and cancelled his conviction of 25 September 2006. ... | The applicant, who was suspected of accepting a bribe, had been placed under police surveillance. A third party who had been cooperating with the police came to meet him and left an envelope containing money on his desk. The police officers intervened immediately and caught the applicant red handed. In accordance with domestic law, they drew up a report of the offence. Later that day the applicant was informed of the charges against him and of the fact that he had a right to remain silent and to see a lawyer. Subsequently he had the assistance of a lawyer during questioning. The applicant complained in particular that he had not been informed of his right to silence and legal representation at the time when he was “caught in the act”. |
719 | Exposure to nuclear radiation | I. the circumstances of the case A. The Christmas Island nuclear tests 10. Between 1952 and 1967 the United Kingdom carried out a number of atmospheric tests of nuclear weapons in the Pacific Ocean and at Maralinga, Australia, involving over 20,000 servicemen. Among these tests were the “Grapple Y” and “Grapple Z” series of six detonations at Christmas Island in the Pacific Ocean (November 1957–September 1958) of weapons many times more powerful than those discharged at Hiroshima and Nagasaki. 11. During the Christmas Island tests, service personnel were ordered to line up in the open and to face away from the explosions with their eyes closed and covered until twenty seconds after the blast. The applicant alleged that the purpose of this procedure was deliberately to expose servicemen to radiation for experimental purposes. The Government denied this and stated that it was believed at the time of the tests, and was the case, that personnel were sufficiently far from the centre of the detonations to avoid being exposed to radiation at any harmful level and that the purpose of the line-up procedure was to ensure that they avoided eye damage and other physical injury caused by material blown about by the blast. B. The particular circumstances of the applicant’s case 12. While the applicant’s father was serving as a catering assistant in the Royal Air Force, he was present at Christmas Island during four nuclear tests in 1957 and 1958. He also participated in the clean-up programme following the tests. 13. The applicant was born in 1966. In or about 1970 she was diagnosed as having leukaemia, a cancerous disease of the organs which manufacture blood. Her records of admission to hospital state, under the heading “Summary of Possible Causative Factors”, “Father – Radiation exposure”. 14. The applicant received chemotherapy treatment which lasted until she was 10 years old. Because of her illness and associated treatment she missed half of her primary school education and was unable to participate in sports or other normal childhood activities. 15. In December 1992 the applicant became aware of the contents of a report prepared by the British Nuclear Tests Veterans’ Association (“BNTVA”) indicating a high incidence of cancers including leukaemia in the children of Christmas Island veterans. The applicant is a member of the BNTVA. 16. She still has regular medical check-ups and is afraid to have children of her own in case they are born with a genetic predisposition to leukaemia. III. The United Kingdom’s ArticleS 25 AND 46 DeclarationS 20. On 14 January 1966 the United Kingdom lodged with the Secretary General of the Council of Europe the following declaration: “… in accordance with the provisions of Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on the 4 th of November 1950, … the Government of the United Kingdom of Great Britain and Northern Ireland recognise, in respect of the United Kingdom of Great Britain and Northern Ireland only …, for the period beginning on the 14 th of January 1966, and ending on the 13 th of January 1969, the competence of the European Commission of Human Rights to receive petitions submitted to the Secretary General of the Council of Europe, subsequently to the 13 th of January 1966, by any person, non-governmental organisation or group of individuals claiming, in relation to any act or decision occurring or any facts or events arising subsequently to the 13 th of January 1966, to be the victim of a violation of the rights set forth in that Convention and in the Protocol thereto…” A declaration under Article 46 of the Convention, recognising the Court’s jurisdiction subject to similar conditions, was filed on the same day. Both declarations have been renewed on several occasions subsequently. | The applicant’s father was exposed to radiation whilst serving as a catering assistant in the Royal Air Force at Christmas Island (Pacific Ocean) during nuclear tests in the 1950s. The applicant was born in 1966. In or about 1970 she was diagnosed as having leukaemia. The applicant claimed in particular that the British authorities’ failure to warn her parents of the possible risk to her health caused by her father’s participation in the nuclear tests had given rise to a violation of Article 2 (right to life) of the Convention. |
297 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 12. The applicant was born in 1974 and lives in London. She is the cousin of Jean Charles de Menezes, who was shot dead by police officers on 22 July 2005. A. Background 13. On 7 July 2005 four suicide bombers detonated explosions on the London transport network. Three of the suicide bombers were on underground trains and one was on a bus. Fifty-six people, including the four suicide bombers, were killed in the attack and many more were injured. 14. The Metropolitan Police Service (“the MPS”) initiated a major police investigation to establish the identities of persons involved in or otherwise connected with the explosions. Available intelligence indicated that terrorists were actively planning a further attack within a matter of days, and the threat level posed to the United Kingdom from international terrorism was raised from Level 3 to Level 1. 15. On 21 July 2005, precisely two weeks after the first bombings, four explosive devices were discovered in rucksacks left on three underground trains and on one bus. As it was feared that the failed bombers would regroup the following morning and attempt to detonate further explosions, the MPS immediately launched an operation to find them (“Operation THESEUS 2”). This operation was led by Police Commander John McDowall as Gold Commander. 16. At 4.20 a.m. on 22 July 2005, Commander McDowall was informed that intelligence had identified Hussain Osman as a suspect in the failed bombings of 21 July. Both Mr Osman and another suspect were thought to be living in an apartment at 21 Scotia Road, London. B. Operation THESEUS 2 1. Commander McDowall ’ s strategy 17. At 4.38 a.m. on 22 July 2005, Commander McDowall decided to mount surveillance operations at both Scotia Road and another London address. The overall aim of the operation at 21 Scotia Road was to establish whether the suspects were present in the apartment and to arrest them safely if they came out. Commander McDowall ’ s strategy for this operation was not recorded; however, it would appear to have been to oversee the premises at Scotia Road through covert surveillance, to follow persons leaving the premises until it was felt safe to challenge them, and then to stop them. In order to implement this strategy, his plan was that a surveillance team from SO12 (Special Branch) should be in attendance at Scotia Road. They were to be supported by a unit from SO19, the Specialist Crime & Operations branch of the MPS. The unit from SO19 consisted of highly trained Special Firearms Officers (“SFOs”) who were usually deployed on pre-planned operations. Although some surveillance officers were armed for their own protection and that of the public, their training did not enable them to be used as a resource to arrest armed suspects. SO19 would normally undertake this task, although armed officers from SO12 could be used for this purpose as a last resort. 18. The Crown Prosecution Service (“the CPS”) Review Note later found that if Commander McDowall ’ s strategy had been followed (notably, had the team from SO19 been deployed in time to support the surveillance teams at Scotia Road), events would not have unfolded as they did. 2. The command structure 19. Commander McDowall appointed Commander Cressida Dick as the Designated Senior Officer (“the DSO”) in charge, who was to be responsible for accomplishing the THESEUS 2 strategy safely. As such, she had responsibility for the operation at 21 Scotia Road on 22 July 2005. She was based in control room 1600, where she was supported by Trojan 80, an experienced SFO from SO19 who was acting as her tactical adviser. 20. Detective Chief Inspector C (“DCI C”) was appointed as Silver Commander for the operation at Scotia Road. Although a Silver Commander would usually have ultimate responsibility for the management of an incident and deployment of firearms resources, on this occasion the DSO retained this responsibility and DCI C operated as the DSO ’ s ground commander. DCI C was supported by and accompanied on the ground by Trojan 84, who, like Trojan 80, was an experienced SFO from SO19 who was acting as a tactical adviser. Trojan 84 was in charge of the SFO team to be deployed and he was in direct contact with Trojan 80. 21. Detective Superintendent Jon Boutcher (“DS Boutcher”), the Senior Investigating Officer for the investigation into the identity of the persons responsible for the bombings on 7 July 2005, was also appointed as a Silver Commander. 3. Implementation of Commander McDowall ’ s strategy 22. At 5.00 a.m. on 22 July 2005, a surveillance team from SO12 was called out. No request was made at this stage for a unit from SO19. 23. By 6.04 a.m. two surveillance teams from SO12 had been deployed to the Scotia Road address to oversee the premises and to follow anyone coming out of the apartments. 21 Scotia Road was accessed by the same doorway as 17 Scotia Road and the surveillance teams were stationed in an observation van which had a view of that doorway. 24. SO13 (the Anti-Terrorist Branch of the MPS) deployed four officers to assist with any arrest and to gain intelligence. DS Boutcher was the link between the control room and SO13. 25. At 6.50 a.m. Commander McDowall held a briefing during which the firearms strategy was outlined. Trojan 80 was present at the briefing together with the Silver Commanders for the surveillance operations at Scotia Road and the second London address. The DSO arrived at 7.15 a.m.; however, Commander McDowall spoke to her after the briefing to ensure she had all the information and assistance she needed. 26. As they had not been called out earlier (see paragraph 22 above), SFOs from SO19 were allocated to the operation when they reported for duty. At 7.45 a.m. Trojan 84 briefed the SFOs. The briefing was not recorded, but he appears to have told the team that they “may be required to use unusual tactics because of the situation they were in and that they should think about this”. When asked for clarification, Trojan 84 added that, in relation to a critical shot, the instruction would come directly from the DSO. However, if they were deployed to intercept a subject and there was an opportunity to challenge but the subject was non-compliant, a critical shot could be taken. The CPS later found that this briefing “stoked the [SFOs ’ ] fears that they would meet suicide bombers and that they may have to shoot such people”. 27. Following the briefing, the unit from SO19 travelled to a police station at Nightingale Lane, which was approximately two miles from Scotia Road. They stopped off for petrol on the way. Upon arrival they received a further briefing from DCI C, which commenced at 8.50 a.m. The briefing was not recorded, but it appears that DCI C confirmed the terrorists had the capacity to attach a device to themselves that would be difficult to detect. He described the individuals involved in the bombings as being “deadly and determined” and “up for it”. The CPS later criticised this briefing as unbalanced, as DCI C had failed to caution the SFOs that not everyone they would stop leaving Scotia Road would be a suicide bomber and that they should not overreact in the heat of the moment. 28. The team from SO19 was not deployed on the ground until after 9.30 a.m. 4. Events leading to the death of Mr Jean Charles de Menezes 29. Jean Charles de Menezes was a Brazilian national who lived at 17 Scotia Road. At 9.33 a.m. he left his apartment building through the common doorway in order to go to work. An officer in the surveillance van saw Mr de Menezes, described him and suggested “it would be worth someone else having a look”. However, as the unit from SO19 had not yet reached Scotia Road it was not possible to stop Mr de Menezes at this stage (as per the strategy outlined at paragraph 17 above). Instead, he was followed by the surveillance officers. 30. On leaving Scotia Road, Mr de Menezes walked a short distance to a bus stop and got on a bus heading towards Brixton. The CCTV on the bus did not capture the entire journey due to vibrations but Mr de Menezes was recorded as being on the bus by 9.39 a.m. At this point the surveillance team described him as “a good possible likeness” to Hussain Osman. By 9.46 a.m. the description had changed to “not identical”. 31. At 9.47 a.m. Mr de Menezes got off the bus. He was then seen using his mobile telephone before running back to the bus and reboarding. 32. There are conflicting accounts of whether a positive identification was made of Mr de Menezes as the suspect at this stage. It appears from the Stockwell One Report of the Independent Police Complaints Commission (“the IPCC” – see paragraphs 45 - 71 below) that those on the ground had not been able to identify Mr de Menezes as Hussein Osman. The fact that the Surveillance Running Log refers to him at each entry as being an “U/I [unidentified] male” lends some support to this position. Nevertheless, those in control room 1600 appear to have believed that a positive identification of Hussein Osman had been made. 33. At around the time that Mr de Menezes reboarded the bus, the unit from SO19 began to make its way towards Brixton. The SFO team leader later told the IPCC that he heard over the radio that “it was definitely our man and that he was nervous and twitchy”. 34. At 9.59 a.m. the surveillance teams were asked to give a percentage indication of the likelihood that Mr de Menezes was the suspect, and they replied that it was “impossible [to do so] but thought that it was [the] suspect”. 35. Mr de Menezes got off the bus at Stockwell and walked towards Stockwell underground station. There were several surveillance officers in the vicinity and their leader offered to stop Mr de Menezes before he entered the station. The DSO initially ordered that they perform the stop, having been informed that the unit from SO19 was not yet in a position to intervene. However, almost immediately thereafter she was informed that the unit was on hand. As a consequence, she countermanded her original order and instructed the SFOs to stop Mr de Menezes. By this time Mr de Menezes was already in the underground station. Trojan 84 relayed the order to the SFOs, informing them that “they want us to stop the subject getting on the tube”. The SFOs were told that they were going to Code Red, which meant that they were to have ultimate control of the situation and that an armed interception was imminent. 36. The CCTV at the station shows Mr de Menezes entering the station at 10.03 a.m. wearing a thin denim jacket, a T-shirt and denim jeans, walking calmly and not carrying anything. He went down an escalator and onto a platform. There is no CCTV recording of the lower end of the escalator or of the platform: the relevant tapes, when seized by the MPS, were blank. The IPCC Stockwell One Report and the CPS later found that this was because a cable had been damaged during recent refurbishment work. 37. At 10.05 a.m. a number of SFOs entered Stockwell underground station and ran down the escalators. At 10.06 a.m. they followed Mr de Menezes onto the platform. Eyewitness accounts as to what exactly happened next are conflicting, and some of the witnesses gave accounts which, it is now known, could not have been accurate. However, it would appear from the accounts quoted in the IPCC Stockwell One Report that Mr de Menezes went into the third coach of a stationary train and sat down; one of the surveillance officers shouted to the SFOs that Mr de Menezes was there; Mr de Menezes stood up, arms down; he was pushed back onto his seat and pinned down by two police officers; according to one witness his hand may have moved towards the left hand side of his trouser waistband; and two SFOs (Charlie 2 and Charlie 12) shot Mr de Menezes several times and killed him. 38. Within days of the shooting, after it had become apparent that Mr de Menezes had not been involved in the attempted terror attacks on 21 July, the Commissioner of the Police of the Metropolis, the Prime Minister and the Secretary of State for Foreign and Commonwealth Affairs expressed their profound regret at his death. A representative of the MPS travelled to meet his family in Brazil and apologised directly to them on behalf of the police. An ex gratia payment was agreed upon to ensure that the family ’ s financial needs were met. They were encouraged to take independent legal advice from a solicitor in the United Kingdom, and they were advised that their legal costs in doing so would be met. C. Post-death investigations 1. The initial investigations 39. The Police Reform Act 2002 and the Police (Complaints and Misconduct) Regulations 2004 required a police shooting to be referred to the IPCC. However, following the shooting of Mr de Menezes, the Commissioner of the Police of the Metropolis wrote to the Home Office to inform it that he had decided not to refer the matter to the IPCC at that time. 40. As it was not immediately clear that Mr de Menezes had not been connected to the attempted bombings, the Anti-Terrorist Branch initially retained primary control of the scene of the shooting. During this time the Department of Professional Standards (“the DPS”), an independent section of the MPS which had been notified of the shooting at 10.38 a.m. on 22 July 2005, ensured the integrity of the scene, interviewed witnesses, and completed forensic retrieval. 41. After the shooting, Charlie 2 and Charlie 12 had been taken to a police station. At 2.30 p.m., having taken legal advice, they indicated that they would not be making statements at that time. Instead, they made their statements together at approximately 2.00 p.m. the next day, after they had been told that Mr de Menezes was not connected to the attempted bombings. Some of the details they initially provided have since been either proved false or called into doubt. For example, they initially indicated that Mr de Menezes had been wearing a bulky jacket (CCTV footage showed him wearing a light denim jacket) and that the officers from SO19 had shouted “armed police” when they boarded the train (the IPCC considered such action to be “illogical” when confronting a possible suicide bomber). 42. An officer from SO12 had seized the surveillance log at 12.35 p.m. on 22 July 2005. However, at 8.40 p.m. the same day, it was handed back to the officers from the unit. Around this time an amendment appears to have been made to an entry; the words “a split second view of his face. I believe it was [the suspect]” appear to have been altered to read “I believe it was NOT [the suspect]”. 43. At 9.45 p.m. on 22 July 2005, the Anti-Terrorist Branch formally handed over control of the scene to the DPS as they were satisfied that Mr de Menezes was not connected to the attempted bombings. 44. On 23 July 2005 a post-mortem examination took place and recorded the cause of death as “multiple gunshot wounds to the head. The cause of death is severe disruption to the brain”. 2. The first IPCC investigation and the IPCC Stockwell One Report 45. On 25 July 2005 the DPS formally referred the investigation to the IPCC, whose investigation began on 27 July 2005 when the DPS provided it with the relevant material in its possession. Because of the seriousness of – and the public interest in – the matter, the IPCC determined that it would use its own staff to carry out the investigation. It was overseen by the Chair of the IPCC personally and the investigating team possessed all the powers and privileges of a police constable carrying out an investigation. 46. The purpose of the investigation was to advise the CPS of any criminal offence that might have been committed; to provide it with the evidence necessary to come to a decision regarding any prosecution; to enable the “responsible authorities” of the officers concerned (the MPS and Metropolitan Police Authority, or “MPA”) to consider what disciplinary or other action they might need to take; to inform the Secretary of State for the Home Department of the circumstances of Mr de Menezes ’ death; and to assist the coroner in relation to any inquest. 47. In particular, the investigation by the IPCC was to examine : (a) the information that led to the surveillance of the apartments at Scotia Road; (b) the command structure of the operation, including details of the numbers and types of specialist officers deployed and the tactics available to them; (c) the qualification and training of those involved and their suitability to carry out their role; (d) details of the briefing given to the officers involved and any description or photograph of any suspect made available; (e) whether or not the operation was designated as a “KRATOS” operation (the national strategy for dealing with suspected suicide bombers which permitted the use of lethal force if absolutely necessary) and the policy, operational tactics and authority levels of “KRATOS”; (f) the details of the mobile surveillance operation from Scotia Road to Stockwell underground station; (g) the details of police action once Mr de Menezes had reached Stockwell underground station; (h) whether or not the policy and operational authorities of “KRATOS” were followed and were effective; and (i) whether “KRATOS” was compliant with Article 2 of the Convention. 48. The IPCC was also to report on the actions and statements of the DPS from the time of the incident to the formal handover of the investigation to the IPCC to ensure that the IPCC investigation met its obligations under Article 2 of the Convention. 49. During the course of the investigation, nearly 890 witness statements were taken from police, forensic experts and civilian witnesses, and more than 800 exhibits were collected. The family of Mr de Menezes, together with their legal representatives, were given regular detailed verbal briefings on the progress of the investigation and eventually on its conclusions. 50. On 30 September 2005 the IPCC investigating team submitted a report to the IPCC indicating, inter alia, that certain officers might have committed criminal or disciplinary offences. The IPCC therefore wrote to the MPS and to the MPA regarding the officers concerned. 51. On 19 January 2006 the IPCC Stockwell One Report was completed and submitted to the CPS. On 6 and 22 March 2006 the legal representatives of Mr de Menezes were briefed on the IPCC investigation and report. IPCC personnel also offered to travel to Brazil to brief any member of his family residing there. On 14 March 2006 the IPCC submitted its recommendations to the MPS, MPA, Her Majesty ’ s Inspector of Constabulary and to the Home Office. (a) Summary of the Stockwell One Report ’ s conclusions 52. The report considered all the witness statements and outlined in detail the events of 22 July 2005 and the investigative steps which followed the shooting. In particular it examined the actions and responsibility of the Commanders, their advisers and all the frontline SFOs and surveillance officers. While it accepted that the death of Mr de Menezes was not the result of any deliberate act designed to endanger the life of any innocent third party, it nevertheless concluded that “20.01 [t]here can be no doubt that on the morning of 22 July 2005 a combination of circumstances between 0500 and 1006 led to the killing of an entirely innocent man”. 53. With regard to this “combination of circumstances”, it identified a number of failings. 54. Firstly, it criticised the briefings given by DCI C and Trojan 84. “20.8 There is no doubt that the briefings provided by [DCI C and Trojan 84] included a comprehensive update on the intelligence including the links between 7 July and 21 July and the possibility that the firearms officers may have to confront one of the terrorists who had survived the suicide bombings the previous day. What the briefing for [SO19], and indeed the other teams, did not include was any rider about the circumstances in which the Operation KRATOS policy could be used. That policy was only one option available to the Metropolitan Police for dealing with suspected terrorists and suicide bombers. The [SO19] officers were not told that it should only be used as a matter of last resort when they were sure of the identity of the person in relation to whom the policy was to be applied. That should have been included in the briefing.” 55. Secondly, it criticised the failure to implement Commander McDowall ’ s strategy by deploying the unit from SO19 to Scotia Road earlier. “20.15 The management of the operation between 07:15hrs and 09:30hrs should have involved giving practical effect to the strategy devised by Commander MCDOWALL so that appropriate resources were in place at SCOTIA ROAD from the earliest possible time. Commander DICK was in charge of the operation following her briefing from Commander MCDOWALL. The policy, which is described at paragraphs 6.3 and 6.4, was, in essence, one of containment, stop and arrest. What occurred between 07:15hrs and 10:06hrs was a failure of that policy. Between 07:15hrs and 09:33hrs there was no adequate effort to put in place police resources at SCOTIA ROAD that would have enabled the Metropolitan Police to give effect to the policy. During those hours there was a series of briefings. None of the eight people who left the flats before Mr DE MENEZES left were stopped in accordance with the strategy and when he left he was simply followed while ineffective attempts were made during the course of half an hour to determine whether he was [the suspect]. If appropriate resources had been in place there would have been the opportunity to stop Mr DE MENEZES during the course of his five minute walk from SCOTIA ROAD before catching the bus in TULSE HILL. ... 20.32 Detective Chief Inspector C, the Silver Commander, was effectively the ground commander with responsibility for SO12, SO13 and [SO19] officers. However owing to the fact that he was still with SO13 and [SO19] at NIGHTINGALE LANE when Mr DE MENEZES left SCOTIA ROAD, and stationary at the T.A. Centre where DE MENEZES was identified as the suspect at BRIXTON, DCI C was always playing ‘ Catch up ’ in respect of the operation. ... 20.49 ... evidence from the CCTV at STOCKWELL underground station reveals that the [SO19] officers did not enter the station until two minutes after Mr DE MENEZES had passed though the ticket barriers. 20.50 While two minutes is a very short time period, the delay in [SO19] getting to the scene and the failure to get a positive identification had enabled a person, believed to be a possible suspect for attempting to detonate a bomb on the underground system the day before, to get on the same bus twice and enter an underground station.” 56. Thirdly, the report was critical of the delay in handing the investigation to the IPCC. “17.22 The pressures under which the Metropolitan Police were operating following the events of 7 July and 21 July are self-evident. However, the fact that the independent body established by an Act of Parliament to investigate complaints and serious incidents involving the police, and which has independently investigated every fatal police shooting since 1 April 2004, was now to be excluded from the scene, is a major concern for an independent investigation, and should never occur again. 17.23 The fact that there was such concern over the problems with the CCTV tapes at STOCKWELL and the fact that the hard drives on the train were missing highlights the problem. This issue could have been resolved a lot earlier had they been under the control of the IPCC. ... 17.25 The failure to allow the IPCC access has also been highlighted by the fact that the surveillance log 165330 has been altered. ... 17.33 Had the IPCC been involved at the commencement of the investigation, the surveillance log would not have been released for amendments to be made.” 57. Nevertheless, the IPCC found that high vibrations had interfered with the recording of most of the bus journey, the hard drive on the train had not been replaced on the relevant day, and the recording equipment in the station had been broken during prior refurbishments. Consequently, it concluded that there was “no evidence of a cover-up to withhold this evidence from the investigation”. 58. Likewise, two expert witnesses who examined the surveillance log could not agree either that it had been altered or, if it had been, who might have altered it. (b) Prosecutions 59. The report also identified a number of individuals whom the CPS might consider prosecuting. (i) Charlie 2 and Charlie 12 60. As to the shooting of Mr de Menezes after he had been tackled on the train, the IPCC noted as follows. “20.71 The actions of Charlie 2 and Charlie 12 should be considered in light of the day ’ s events and those of the previous two weeks. At the briefing, they were supplied with a full briefing on the capabilities of the terror suspects. During the operation they had heard the man being followed was being identified as one of the suspects from the previous day ’ s attempted bombings. On arrival at STOCKWELL, [SO19] went to State Red, authorising a firearms intervention, following an order from the DSO to stop the man from entering the station and tube train. 20.72 They had seen ‘ Ivor ’ [a surveillance officer from SO12] point at the suspect, who they saw get off his seat. ‘ Ivor ’ then grabbed the man and forced him back to the seats. Both officers state they believed they had to act immediately to prevent loss of life to the people on the train. ... 20.74 Charlies 2 and 12 clearly believe[d] they were acting in self-defence, and had the right in law to use the force they did. The [CPS] may wish to consider whether the actions of Charlie 2 and Charlie 12 amount to murder in the context of their justification for the shooting of Mr DE MENEZES and having regard to the fact that there were explanations given for the shooting at that time which did not accord with the accounts given 36 hours later. ... 20.94 ... [ The CPS] ... may also wish to consider whether they were grossly negligent to come to the conclusion that they were confronting a suicide bomber. ” (ii) The DSO 61. With regard to the role of the DSO, the IPCC stated as follows. “20.77 The order given by Commander DICK was to stop the suspect getting onto the underground station and subsequently the underground train. When interviewed she was asked to explain the word ‘ Stop ’ and her response was that ‘ Stop ’ is a common word in policing terms and it was meant as ‘ stop and detain ’. This opinion is supported by DCI C and Trojan 80 and 84. 20.78 However, the way the order was received by [SO19] must be considered. Following a full briefing, many of the [SO19] officers have described that they believed that they would have to confront a suicide bomber. The [SO19] officers have stated that they believed the man being followed on the bus had been identified as one of the suspects for the failed bombings on 21 July 2005. They had been in a situation of trying to ‘ Catch up ’ with the surveillance team since their briefing had finished. And as they approached STOCKWELL underground station they hear that the suspect had entered the underground station and they received an order to stop him getting on the underground train. I do not believe that the use of the word ‘ Stop ’ can be related to normal policing duties. With the mind-set of the [SO19] officers believing that a suicide bomber had entered the underground station, to receive such an order to stop him from DSO cannot be related to normal duties. They had not had the benefit of a rider to their briefing of the sort to which I refer at paragraph 20.8. If they had received such a briefing they might have been more cautious in the way they approached and dealt with Mr DE MENEZES. ... 20.82 I [Senior Investigator J.D. Cummins] comment[s] at paragraph 20.47 on the consequences of the surveillance team having failed to adequately identify the person they were following. However, that team had spent thirty minutes following and staying with Mr DE MENEZES and attempting to identify him. That provided Commander DICK with a thirty minute opportunity to act in accordance with the operation strategy. There was no attempt to do so. 20.83 The SO12 officers who were following Mr DE MENEZES had been authorised to carry firearms for their personal protection and the protection of the public. In the context of the events of 7 July and 21 July when, respectively, there had been a successful detonation and an attempted detonation of bombs on buses it was a failure of the management of the operation to permit Mr DE MENEZES to get on the bus at TULSE HILL. If he had been a suicide bomber that event could have been catastrophic. Therefore the failure to use SO12 to stop him getting back on the bus in BRIXTON is an even more inexplicable failure to apply the strategy. ... 20.87 [The DSO] has endorsed that she was the person in command. The [CPS] may wish to consider whether the manner in which this operation was commanded, the failures to have resources properly deployed and the absence of any other tactical options could be considered to be grossly negligent. ” (iii ) “James” 62. With regard to the “identification” of Mr de Menezes as the suspect, the IPCC noted: “20.53 ... James [the head of the surveillance teams] did not communicate that some of his team thought that the subject was not [the suspect]. This information should have been fully communicated to [the DSO] as it may have influenced her decision-making. The [CPS] may wish to consider whether this negligence by ‘ James ’ ... satisfies the test for gross negligence.” (iv) The other officers on the train 63. As to any potential offence on the part of the eight officers on board the train: “20.91 Given that they believed they were confronting a suicide bomber it is perhaps illogical that they would have challenged him prior to trying to detain him. The [CPS] may wish to consider whether any of the eight officers on the train who state they shouted or heard the words ‘ armed police ’ have conspired to pervert the course of justice. ” (v) Trojan 80, Trojan 84 and DCI C 64. As the IPCC did not consider that Trojan 80, Trojan 84 and DCI C had been in a position to influence the outcome of events, it was of the opinion that they could not be held responsible. (vi ) The surveillance log 65. In respect of the possible alteration of the surveillance log (see paragraphs 42 and 56 above), the IPCC did not find sufficient evidence against any individual to suggest that criminal proceedings might be appropriate. (c) Operational recommendations 66. The IPCC noted that, in the course of its investigation, grave concerns had been raised regarding the effectiveness of the police response on 22 July 2005. These concerns were not only that an entirely innocent member of the public had been killed in error but also that the police response might not have been adequate to stop a terrorist who was intent on causing harm. It therefore made a number of detailed operational recommendations. 67. The IPCC pointed out two operational concerns regarding the use of firearms ̶ the substantial delay between the time the unit from SO19 was requested and when it was deployed, and the lack of clarity about the command to “stop” the suspect given the likely mindset of the SFOs. It also made detailed recommendations on command and control issues in firearms operations, including the need to clarify the roles and responsibilities within the chain of command; to establish a clear and common understanding of the circumstances surrounding future operations; and, given the failure to implement Commander McDowall ’ s strategy to ensure the deployment of the unit from SO19 in time, to put in place better communications channels. 68. In respect of the surveillance operations, the IPCC expressed concern that the surveillance team, the SFOs, and those in command were not used to working together and were not sufficiently familiar with each other ’ s working practices; that two surveillance officers believed the person being followed was not the suspect and that this was not communicated to the DSO; and that the surveillance log had been altered. 69. In relation to the post-incident management, the IPCC repeated its concern regarding the delay in handing the scene and the investigation over to it, and the fact that Charlie 2 and Charlie 12 had been allowed to return to their own base, refresh themselves, confer and write up their notes together. 70. As regards the communications infrastructure, the IPCC was concerned that key briefings and strategic and tactical decisions were not recorded and, furthermore, that the command and control of the incident was inevitably lost when the unit from SO19 entered the underground. Concerns were also expressed that the existing Firearms Manual and the “KRATOS” policy were patently insufficient to deal with the current terrorist threat. (d) Publication 71. The IPCC Stockwell One Report was not made public until 8 November 2007, as publication was delayed pending the criminal trial of the Office of the Commissioner of the Police of the Metropolis (“the OCPM” – see paragraphs 100 - 01 below). 3. The second IPCC investigation and the IPCC Stockwell Two Report 72. On 14 October 2005 the MPA referred a complaint to the IPCC regarding the MPS ’ s handling of public statements following the shooting of Mr de Menezes. The IPCC carried out a second investigation and the IPCC Stockwell Two Report was published on 2 August 2007. The contents of that report are not directly relevant to the complaint currently before the Court. D. Disciplinary proceedings against the frontline and surveillance officers 73. The IPCC had the power to recommend or direct the MPS to bring disciplinary proceedings against individuals. During the IPCC investigation, fifteen officers were served with notices under Regulation 9 of the Police (Conduct) Regulations 2004, informing them that they were being investigated and warning them that the investigation might result in disciplinary proceedings being brought against them. 74. However, on 11 May 2007 the IPCC decided that no disciplinary action should be pursued against any of the eleven frontline and surveillance officers involved in the operation since there was no realistic prospect of any disciplinary charges being upheld. One surveillance officer received “words of advice” in connection with the alteration of the surveillance log. 75. A decision concerning disciplinary charges against the two Commanders and their tactical advisers was postponed until after the prosecution of the OCPM (see paragraphs 100 - 01 below). E. The first prosecutorial decision 1. The decision 76. On receiving the IPCC Stockwell One Report, the CPS considered whether to bring prosecutions against any individual officers for murder, involuntary manslaughter by way of gross negligence (“gross negligence manslaughter”), misconduct in public office, forgery or attempting to pervert the course of justice. It also considered whether to prosecute the OCPM or any individual for offences under the Health and Safety at Work etc. Act 1974 (“the 1974 Act”). In deciding whether or not to prosecute, it first had to apply a threshold evidential test, namely, whether or not there was a realistic prospect of conviction, before asking whether or not prosecution would be in the public interest (see paragraph 163 below). (a) The first decision letter 77. By letter dated 17 July 2006, the CPS notified the deceased ’ s family that the Director of Public Prosecutions (“the DPP”) had decided to prosecute the OCPM, not in the Commissioner ’ s individual capacity but as an employer of police officers, for failing to provide for the health, safety and welfare of Mr de Menezes, contrary to sections 3 and 33 of the 1974 Act (see paragraphs 157 - 58 below). No individual was to be prosecuted in relation to the death as there was “insufficient evidence to provide a realistic prospect of conviction against any individual police officer”, that is, it was more likely than not that a jury would not convict. 78. The decision letter, in so far as relevant, provided as follows. “In the circumstances of this case, if the prosecution could prove that [the SFOs] were not acting in self defence (either of themselves or others) then they would be charged with murder. The order was given that Jean Charles was to be stopped from getting on the train. Although officers in the control room intended that Jean Charles should be arrested outside the station, the [SFO team] were not in place to make such an arrest, nor was this intention made explicit to the [SFOs] who were being sent down to the train. All the available evidence suggests that they believed that Jean Charles had been identified as a suicide bomber, that they had been directed to stop him from blowing up the train and that they had to shoot him to prevent that. ... The burden would be on the prosecution to prove beyond reasonable doubt that these two officers did not honestly and genuinely believe that they were facing a lethal threat and so I looked to see if there was sufficient evidence to disprove that they had such an honest and genuine belief. Both officers stated that Jean Charles was wearing a ‘ bulky ’ jacket when they saw him but in fact Jean Charles was wearing a simple denim jacket. I therefore took this into account as it could indicate that the officers had lied. However even if I could prove that the officers had lied, rather than simply being mistaken, this alone would not be enough to commence a prosecution for murder as there could be other reasons for an officer to lie. I also considered their explanations of Jean Charles ’ s movements when they approached him, to see if there was evidence that they had fabricated those accounts to justify their actions. Both refer to Jean Charles getting up and advancing towards them with his hands down by his side before he was tackled by a surveillance officer and forced back into the seat. The [SFOs] then shot Jean Charles. I had to consider whether the prosecution could argue that the restraint meant that no bomb could be detonated and that the firearms officers ’ actions were unlawful. However I must bear in mind that this happened in a matter of seconds and there is some independent evidence that supports the officers ’ accounts that they feared Jean Charles might detonate a bomb. A witness sitting opposite Jean Charles said ‘ I got the impression that he was reaching to the left hand side of his trouser waistband. ’ ... As I cannot prove the officers did not act in genuine self-defence, I cannot charge them with murder or any other offence of assault, including manslaughter. There is some disagreement between officers and the members of the public as to whether any warning was given that armed police were approaching the train. In a situation such as this, where a warning to a suspected bomber could be fatal for officers and the public, no warning should be given. However some police officers say that they did hear a call of ‘ armed police ’ before the shooting and although passengers did hear officers shouting as they ran down the stairs, none of them heard the words ‘ armed police. ’ Both of the [SFOs] say that they shouted ‘ armed police ’ immediately before they fired but whether they did, and if so, whether it was intended as a warning to Jean Charles or to others in the carriage is unclear. There is no doubt that some police officers did shout something before any shots were fired .... Unless I could prove that officers had lied ... to mislead any investigation, I could not prosecute them for attempting to pervert the course of justice. Next I carefully examined the roles of those police officers concerned in planning the surveillance and stop and those who carried it out. [T]here were a number of people involved and there is no doubt that messages were misinterpreted with tragic consequences. I have considered whether any errors or other conduct by individuals could be categorised as criminal. In this I have applied the law on gross negligence manslaughter, misconduct in public office and the [1974] Act. Even where I found that individuals had made mistakes, I found insufficient evidence that those mistakes were so bad that they could be described as criminal. As criminal proceedings are to be brought against the [OCPM], I cannot provide you with a detailed account of the conduct of those individuals, as that conduct will form part of the prosecution case.” (b) The Review Notes 79. More detailed reasons were provided in a fifty-page Review Note dated 9 March 2006 as well as in a Final Review Note of 9 July 2006. (i) The IPCC investigation 80. In respect of the investigation by the IPCC, the Review Note stated as follows. “I am satisfied that the investigation has complied with Article 2 and the procedural requirements that flow from it. The IPCC is clearly independent of the Metropolitan Police and the investigation has not been limited to the actual shooting on the train but has examined the whole of the operation. I have had a number of discussions with senior investigators at the IPCC who have assisted me with any queries I have raised. I am therefore satisfied that I have sufficient material before me to reach a decision on the criminal liability of those officers involved in the operation that led to the death of Mr de Menezes and the Commissioner as corporation sole.” 81. However, the Review Note drew attention to one particular evidential difficulty: “Perhaps the most significant problem in understanding what occurred is that there is an almost complete absence of any worthwhile contemporaneous records and the accounts from the participants vary significantly on all the crucial aspects. It is at times impossible to say with any certainty what was said, by whom, to whom and when. There is also the issue that some accounts were made in the knowledge that something terrible had gone wrong.” 82. With regard to the witness statements taken from the passengers on the train, the Review Note indicated that there were inevitable inconsistencies in their recollections of events with the consequence that “the accounts do not match either among themselves or with those of the police”. For example, some of the witnesses confused Mr de Menezes with “Ivor”, one of the surveillance officers. (ii ) Charlie 2 and Charlie 12 83. With regard to Charlie 2 and Charlie 12, the Review Note reiterated that there was insufficient evidence to persuade a jury that they did not genuinely believe they were acting in self-defence. It noted that, if they did hold a genuine belief, then the actions they took in shooting dead a “suicide bomber” would be reasonable and would not be unlawful. (iii ) The DSO 84. As for Commander Cressida Dick, the Review Note stated that there was no evidence against her to sustain a charge of murder, as she did not order any officer to open fire. The prosecutor was, however, satisfied that there was evidence her actions and direction and failure to plan fell below the standard of a reasonable officer in her position and, as such, a breach of the duty of care and causation could be shown. Nevertheless, he considered that there was “nowhere near enough” evidence to persuade a jury that her conduct was so bad as to justify a charge of gross negligence manslaughter. He also considered the possibility of prosecuting Commander Dick for offences under sections 7 and 33 of the 1974 Act, but, having applied the relevant criteria, found that the prosecution of her or of any of the other individual officers under these provisions would not be in accordance with Health and Safety Executive Policy. (iv ) Trojan 84 85. In the Review Note the prosecutor identified Trojan 84 as the officer most closely connected with the death of Mr de Menezes. In particular he had failed to dispatch firearms cover to Scotia Road, he gave the briefing that stoked the SFOs ’ fears that they would meet suicide bombers and that they might have to shoot them, and, finally, he should have known that, once the SFOs were away from the armed response vehicle and were to engage with a potential suicide bomber, the overwhelming likelihood was that they would shoot. However, he could not be prosecuted for murder as he did not direct the officers to fire and his actions were not “bad” enough to satisfy the test for gross negligence manslaughter. (v) Trojan 80 and DCI C 86. Likewise, the prosecutor considered that there was insufficient evidence to prosecute Trojan 80, DCI C or the surveillance teams for gross negligence manslaughter. (vi ) Alteration of the surveillance log 87. The Review Note considered the alleged alteration of the log (see paragraph 56 above), but found that it had been examined by two experts who did not agree to the required standard either that there had been alterations or, if there had been, who might have made them. Therefore, as it could not be proved that the relevant entry was a forgery, let alone who might have forged it, there was no basis for a prosecution for conspiracy to pervert the course of justice. (vii ) Missing recordings 88. It also indicated that there was no evidence the police, or anyone else, had tampered with the recording equipment on the bus, at the station or on the train. Although there were gaps in the recordings at all three locations, the IPCC investigation had revealed that high vibrations had interfered with the recording of most of the bus journey, the hard drive on the train had not been replaced on the relevant day, and the recording equipment in the station had been broken during prior refurbishments. (viii ) The decision to prosecute the OCPM 89. The Review Note explained in greater detail the decision to prosecute the OCPM. The prosecutor indicated: “In my view, this operation was badly handled from the moment it passed from Commander [McDowall]. It resulted in an innocent man being shot dead in the most horrific manner. The Metropolitan Police were under tremendous pressure and were doing their best to protect the public from suicide bombers. These are factors that I take into account but these do not detract from the failure to carry out [Commander McDowall ’ s] strategy which would have best protected Mr de Menezes.” 90. He continued: “In my view, the lack of planning led to the death of de Menezes and, as such, constituted an offence under section 3 of the [1974 Act]. I believe that if such a charge is preferred, we can prove the case on the evidence already available but a decision not to prosecute individuals will enable the IPCC to seek further evidence to strengthen the case, from those individuals who are at present declining to.” 91. The only defence open would be one of “reasonable practicability” and it was “difficult to see how the police could argue the lack of reasonable practicability in ensuring the safety of [Mr de Menezes]. If this came to a contested trial, the police would probably have to call a number of officers ... who were interviewed as suspects. Their failures in the planning would then be highlighted.” 2. Judicial review of the first prosecutorial decision 92. On 16 October 2006 the applicant sought leave to apply for judicial review of the decision not to prosecute any individual police officer for criminal offences, which she argued was incompatible with Article 2 of the Convention. 93. In particular the applicant argued that the threshold evidential test in the Code for Crown Prosecutors (“the Code”), which prevented a prosecution unless a jury, properly directed in accordance with the law, was likely to convict (see paragraph 163 below), was not compatible with Article 2. She also submitted that Article 2 required the courts to undertake a more intensive review of a prosecutor ’ s decision than that provided for in R v. Director of Public Prosecutions, ex parte Manning ([2001] 1 QB 330), in which the Divisional Court stated that it would accord great weight to the judgment of experienced prosecutors and, as such, a prosecutorial decision would be lawful if it was taken in accordance with the Code and was a decision reasonably open to the prosecutor on the material before him (see paragraph 165 below ). 94. On 14 December 2006 a Divisional Court of the High Court granted permission to apply for judicial review but dismissed the substantive application. 95. In relation to the compatibility of the Code with Article 2, the court found that this Court ’ s jurisprudence did not determine any particular evidential test to be applied when deciding whether or not there should be a prosecution. The test set out in the Code was therefore compatible with the obligation under Article 2 to put 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 punishment of breaches of such provisions. Bringing prosecutions which were likely to fail, even if they could survive a dismissal application and a submission of no case to answer, would have profound consequences for all parties concerned. Furthermore, if the threshold was lowered in cases where lethal force was employed by State agents, it was likely that a significant proportion of prosecutions would fail because the evidence was lacking. If this were to happen, public confidence in both law-enforcement agencies and in the CPS would be undermined. 96. The court also held that Article 2 did not require a change to the established position regarding judicial review of a decision not to prosecute. The “careful scrutiny” review required in Öneryıldız v. Turkey ( [GC], no. 48939/99, § 96, ECHR 2004 ‑ XII) was compatible both with the test outlined in the Manning case (see paragraph 165 below) and with the domestic courts ’ general approach to cases involving fundamental human rights. 97. Thirdly, applying the Manning test, the court found that the decision of the CPS was in accordance with the Code and was one which was reasonably open to it. The decision was taken by a very senior and highly experienced prosecutor and it was reviewed by the head of the CPS and by independent counsel. It was lengthy, careful, thorough, clear and detailed, and the CPS had applied the correct test to each individual considered, namely, “whether there was sufficient evidence to provide a realistic prospect of conviction, or, in other words, whether a jury was more likely to convict than not to convict”. 98. Although it was not necessary for the court to go so far, it also indicated that it saw “no reason to disagree with the decision”. Consequently, it concluded that the DPP ’ s decision was lawful and dismissed the applicant ’ s challenge to it. Leave to appeal to the House of Lords was refused by the court and, on 26 July 2007, by the House of Lords itself. 99. On 22 January 2007 the court also rejected an application by the OCPM to have the charges under the 1974 Act dismissed. 3. The prosecution of the OCPM 100. On 1 October 2007 the criminal trial of the OCPM commenced. A total of forty-seven witnesses were called to give evidence during the course of the trial, including Commander McDowall and Commander Dick. The prosecution argued that the OCPM was guilty of the following: (a) Commander McDowall ’ s strategy had not been communicated adequately to the officers who took over the running of the operations on 22 July 2005, the surveillance officers or the SFOs; (b) Commander McDowall ’ s strategy for controlling the premises was not adequately planned for or carried out; (c) the control-room officers, the SFOs and the surveillance officers had a confused and inconsistent understanding of the strategy for Scotia Road; (d) officers had not been deployed to stop and question persons emerging from the Scotia Road premises, including Mr de Menezes; (e) the SFOs were not in attendance at Scotia Road when Mr de Menezes emerged from the doorway that was common to numbers 17 and 21; (f) there was no contingency plan for dealing with persons who emerged from the apartment building before the firearms officers arrived; (g) persons emerging from Scotia Road had not been stopped and questioned; (h) a safe and appropriate area where those leaving Scotia Road could be stopped and questioned had not been identified; (i) the briefings given to the SFOs were inaccurate, unbalanced, and provided the SFOs with inadequate and inaccurate information regarding the operation, including the operation at Scotia Road; (j) the information concerning the identification of Mr de Menezes, his clothing, demeanour and likely level of threat, was not properly or accurately assessed or disseminated to officers and, in particular, to the SFOs; (k) doubts concerning the correctness of the identification of Mr de Menezes as the suspect were not communicated to the control room; (l) the control-room officers failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers; (m) the SFOs had not been deployed at relevant locations in time to prevent Mr de Menezes from getting on the bus and entering Stockwell underground station; (n) the SFOs failed to satisfy themselves that a positive identification of Mr de Menezes as the suspect had been made by the surveillance officers; (o) effective steps were not taken to stop underground trains or buses so as to minimise the risk to the travelling public; (p) Mr de Menezes was permitted to get on a bus twice and to enter Stockwell underground station despite being suspected of being a suicide bomber and despite having emerged from an address linked to a suspected suicide bomber; (q) a clear and timely order that Mr de Menezes be stopped or arrested before he entered Stockwell underground station had not been given; (r) accurate information had not been given to the DSO regarding the location of the SFOs when she was deciding whether the SFOs or officers from the Anti-Terrorist Branch should stop Mr de Menezes; and (s) the risk inherent in effecting the arrest of Mr de Menezes by armed officers had not been minimised, whether in relation to the location, timing or manner of his arrest. 101. On 1 November 2007 the jury returned a verdict, finding the OCPM guilty of breaching sections 3 and 33 of the 1974 Act (see paragraphs 157-58 below). The jury also attached a rider to its verdict to the effect that Commander Dick bore no “personal culpability” for the impugned events. This rider was endorsed by the trial judge. The OCPM was fined 175,000 pounds sterling (GBP) and ordered to pay costs of GBP 385,000. F. Disciplinary proceedings against the two Commanders and their tactical advisers 102. After the trial, the IPCC decided not to issue a recommendation for the senior officers to face disciplinary proceedings. In particular it had regard to the jury ’ s rider that no blame should be attached to Commander Dick, who was the most senior officer. G. The inquest 103. The inquest, which had been adjourned pending the trial of the OCPM, commenced on 22 October 2008. In the course of the inquest, seventy-one witnesses were called, including Commander McDowall, Commander Dick, Trojan 80, Trojan 84, Charlie 2 and Charlie 12. The family of Mr de Menezes were represented at the hearing at the State ’ s expense and were able to cross-examine witnesses and make submissions. 104. On 24 November 2008 the coroner delivered a written ruling on what, if any, verdicts should be left to the jury. The options available to him were lawful killing, unlawful killing and an open verdict. However, the coroner was not permitted to leave a verdict to a jury if it fell foul of the test used to determine a submission of “no case to answer”, namely, if there was no evidence to support it or the evidence was so weak, vague or inconsistent with other evidence that, taken at its highest, a jury properly directed could not properly return that verdict (see paragraph 166 below). 105. The coroner therefore considered the verdicts to be left to the jury separately as regards certain police officers. 1. The SFOs who shot Mr de Menezes (Charlie 2 and Charlie 12) 106. The coroner found as follows. “16. ... There is no doubt that the officers intended to kill Mr de Menezes when they fired. Therefore, if their contention that [they] were acting lawfully in defence of themselves or others could be disproved, they would have committed ... the offence of murder. 17. There is agreement between all Interested Persons as to what test I should apply in determining whether the officers acted lawfully in defence of themselves and others: (i) Did the officer honestly and genuinely believe that it was necessary for him to use force in defence of himself and/or others? This is a question of subjective belief. Even if the belief was mistaken, and even if the mistake was unreasonable, the defence can still run. The reasonableness of the belief is only relevant in helping the jury to decide whether the belief was honestly held. (ii) If the officer did hold the belief, did he use no more force than was reasonably necessary in the circumstances as he believed existed at the time? This is an objective test, but it is applied realistically. Where a person faces a threat, the Courts will not judge with too precise a measure the degree of force he uses... It is also significant for present purposes that a person under threat is not required to wait passively for the blow to fall. A pre-emptive strike can be justified by the circumstances. ... 18. The legal test is no different when the person facing the threat is a police officer or a soldier. However, as Waller LJ said in Bennett at paragraph 15, the tribunal is entitled to take account of the person ’ s training when applying the two limbs of the test to the facts of the given case. The same must apply to specific briefings as well as general training.” 107. It was accepted by the parties that the SFOs honestly believed that the man in front of them in the carriage was Hussain Osman, the person who was strongly suspected of having attempted to explode a bomb on the underground the day before. However, the coroner rejected the submission on behalf of the de Menezes ’ family that the officers did not honestly believe that Mr de Menezes represented an imminent threat. He therefore found that the jury could not properly conclude to the criminal standard of proof that the two officers did not honestly believe that Mr de Menezes represented a mortal threat to those around them. In reaching that conclusion, he stated: “27. If the officers honestly believed that Mr de Menezes represented a mortal threat to themselves and those around them, it could not be said that they used more force than was reasonably necessary ... An argument was made ... to the effect that [one of the officers] used excessive force because he fired too many times ... In my judgment, it has no merit. The events took place in a few seconds, and one cannot fairly say that some of the shots to the head constituted reasonable force and some did not. In any event, the officers had been trained to fire until the threat was neutralised.” 108. The coroner therefore declined to leave to the jury the option of returning a verdict of unlawful killing in relation to the actions of Charlie 2 and Charlie 12. 2. The senior officers 109. The coroner then considered whether the senior officers could safely be found to have committed manslaughter by reason of having caused death by gross negligence. It was accepted by all parties that this offence had to be proved against a particular officer; the failings of a number of persons could not be aggregated. Four elements had to be proved in order to establish that the offence had been committed: the defendant must have owed a duty of care to the victim, the defendant must have breached that duty, the breach must have caused the death (namely, made a more than minimal causal contribution to the death), and the breach must be characterised as “gross”. 110. In relation to the duty of care, the coroner concluded that “35. ... a police officer can owe a duty of care in directing other police officers to perform an armed interception. The content of the duty here would be to take reasonable care to ensure that such an interception took place in such a location and at such a time as to minimise, so far as reasonably practicable, the risk of unnecessary injury to the subject of the intervention, to the officers concerned and to others in the immediate vicinity. In this case the duty would not arise before the point at which firearms officers were ordered to move through with a view to performing an interception.” (a) Commander McDowall 111. In relation to Commander McDowall, there were three alleged breaches of a duty of care: that he should have set a strategic plan to ensure that suspects were stopped between leaving the premises and reaching the public transport system; that he did not ensure that the unit from SO19 was deployed sooner; and that he had failed to keep himself informed and to ensure that his orders were being followed. In respect of each of these allegations, the coroner did not accept that Commander McDowall had owed any duty of care to Mr de Menezes. However, even if a breach of duty could be established, the coroner did not accept that it had led to Mr de Menezes ’ death. (b) The DSO 112. There were three allegations against Commander Dick. “54. ... First, ... that [she] failed to ensure that the block on Scotia Road was kept under careful surveillance control and that tactics were employed to ensure that all suspects could be identified and stopped before reaching a bus stop. As it happens, the nearest bus stop was on Upper Tulse Hill, only a few minutes ’ walk from the block. The first obstacle [to this] argument is the difficulty of constructing a positive duty of care at that stage to stop Mr de Menezes close to his home. In my judgment, no such duty could exist. Even if it could, I consider that it would not have been practicable to implement this as a fixed and inflexible tactical plan... In any event, the surveillance control was good: Mr de Menezes was kept continually under surveillance but the covert status of the operation near Scotia Road was maintained. The failure to stop him at an earlier stage was based on an inability of officers to say whether he was identifiable with the suspect. Therefore, his death was not caused by any failure of surveillance control at Scotia Road. 55. Secondly, it is alleged that [the DSO] failed to keep herself informed of where surveillance and firearms officers were as Mr de Menezes was travelling from Tulse Hill towards Stockwell. Again, I do not think that a police officer owes a duty to a person under surveillance to ensure that he is informed of the movements of other officers, at least before any intervention is immediately in prospect. If there were such a duty, it would only be to keep oneself reasonably well-informed, since it would not be practicable to keep note of the precise position of every officer and car. The thrust of the evidence is that [the DSO] did keep herself reasonably well-informed. She was aware, through the surveillance monitor in the control room, that surveillance officers were following Mr de Menezes and of what they were saying. In any event, as [counsel for the family of Mr de Menezes] accepts, nothing could have been done to stop Mr de Menezes between his getting on the bus at Tulse Hill and his alighting at Stockwell. [The DSO] had [the SFOs] at the proper holding point at the time she wanted to deploy them. In the minutes before she ordered the intervention, she was relying upon information from [her tactical adviser] as to the position and readiness of the [SFOs]. In my judgment, she was entitled to rely upon that information. In all those circumstances, any failure on her part to keep herself informed was not causative of the fatal events in the carriage. 56. Thirdly, it is submitted ... that [the DSO] failed to exercise proper judgment in her decisions in the last critical minutes, after Mr de Menezes left the bus at Stockwell. In my judgment, she probably did owe a duty of care to him at this stage in making decisions and giving directions for an armed stop. However, she cannot fairly be said to have breached that duty. When she became aware that the subject of surveillance had left the bus, she ordered the [SFOs] to perform an armed stop. Upon hearing that they were not in a position to make the stop, she instructed the surveillance officers to do so. That order cannot be characterised as negligent. If there were any slight delay in giving the order, that can probably be explained by the need to take thought before ordering a suspected suicide bomber to be stopped by officers who were not trained for such situations. Once she was told that the [SFOs] were in position, she countermanded the earlier order. It might be possible to say that she made the wrong decision at that point, given where Mr de Menezes was known to be, but these were fast-moving events and her decision cannot be described as negligent. [It was submitted] that using [SFOs] gave rise to a particular risk that lethal force would be used. However, there were obvious advantages to using officers who had the training and experience to perform armed interventions in a public place.” (c) Trojan 80 (the DSO ’ s firearms tactical adviser) 113. As to this officer, the coroner stated as follows. “58. The first charge against [Trojan 80] is that, upon arriving at New Scotland Yard at around 6.00 a.m., he failed to take steps to expedite the despatch of [the unit from SO19] to the Scotia Road area. For the reasons already given, I do not consider that he would have owed a duty of care to Mr de Menezes in this regard. In any event, when he started work, all the critical decisions had been taken in relation to the [SFOs ’ ] deployments. It would probably not have been safe or sensible to try to expedite the deployments at that stage. As explained in paragraph 52 above, I do not think it can be established to the necessary standard of proof that any delay in deploying firearms teams was causally relevant to the death of Mr de Menezes. 59. The second allegation is that he failed to devise a tactical plan to ensure that any suspect coming out of the block was stopped before reaching a bus stop. This is, in essence, the same as one of the allegations made against [the DSO]. For the reasons I have given in paragraph 54, this argument fails at every stage. 60. The third point made in criticism of [Trojan 80] is that he failed to pass on to [the DSO] accurate information about the position of the [SFOs] in the minutes after it became apparent that Mr de Menezes was leaving the bus. However, [Trojan 80] was reliant for his information on the tactical adviser who was with the team on the ground, ‘ Trojan 84 ’. That officer initially told [Trojan 80] that his team were ‘ not in contention ’ because they were behind the wrong bus. [Trojan 80] duly passed on that information. Even if it were incorrect, it is difficult to criticise him for passing it on.” 114. If, contrary to all of the above, any of the allegations were made out, the coroner concluded that none approached the level of gross or criminal negligence. (d) Conclusion 115. In light of the above, the coroner decided not to leave the potential short-form verdict of unlawful killing to the jury in respect of the senior officers and instead left them to decide between a verdict of lawful killing and an open verdict. 3. Questions 116. The coroner also included in his Ruling a list of proposed questions which would be left to the jury and which required responses of “yes”, “no”, or “cannot decide”. Having heard the parties ’ submissions, on 1 December 2008 he finalised the list of questions to include questions of fact concerning the events in the train carriage and questions concerning the factors which had contributed to Mr de Menezes ’ death. However, he refused to leave “open questions” to the jury inviting them to add any other factors which they regarded as causally relevant. 4. Judicial review of the coroner ’ s decision 117. On 2 December 2008 Mr de Menezes ’ mother had sought leave to apply for judicial review of the coroner ’ s decision to exclude both the verdict of unlawful killing and certain narrative verdict questions. At the hearing, she pursued the second point only because, by that date, the coroner had started summing up and had already indicated the verdicts that were to be left to the jury. 118. The claimant argued that the coroner had been obliged to ensure that the jury members were permitted to resolve the disputed factual issues at the heart of the case and were able properly to determine by what means and in what circumstances Mr de Menezes had come by his death. The question of how he came by his death went far beyond determining whether to return a verdict of lawful killing or an open verdict. The coroner ’ s approach had precluded the jury from commenting on whether or not they regarded any particular failings by the police as serious and, if so, how serious – and how important in terms of accountability – these failings were. As such, the jury ’ s findings were at best likely to beg more questions and at worst be confusing or meaningless. The claimant therefore wished to put additional narrative verdict questions to the jury once the coroner ’ s summing up was finished. 119. On 3 December 2008 Silber J refused leave to apply for judicial review. 120. Firstly, he found that the existing verdicts and questions satisfied the statutory obligation under section 11 of the Coroners Act 1988 and Rule 36 § 1 (b) of the Coroners Rules 1984 (see paragraphs 167 -68 below) to enable the jury members to ascertain by what means and in what circumstances Mr de Menezes had come by his death. Furthermore, the inquiry required by the coroner of the jury in this case was significantly more demanding than that sought from, and given by, the jury in both Bubbins v. the United Kingdom (no. 50196/99, ECHR 2005 ‑ II) and McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324), and in those cases this Court had found that the procedural obligations under Article 2 of the Convention had been met. 121. Secondly, the judge observed that the claimant had not pointed to any case decided domestically or in this Court which held that specific questions were required to be asked of a jury over and above asking “by what means and in what circumstances” the deceased had died. 122. Thirdly, as the coroner had a discretion “to decide how best in the particular case to elicit the jury ’ s conclusion on the central issue or issues”, the judge considered that the only grounds for interfering with it would probably be Wednesbury grounds, namely, that the coroner ’ s decision was so unreasonable that no reasonable coroner would have done the same. 123. Fourthly, the judge found that there was a risk that, if the jury members were required to answer the additional questions proposed by the claimant, they would be acting in contravention of Rule 36 § 2 of the Coroners Rules 1984 by expressing opinions on matters other than those on which they were entitled to comment and in particular by appearing to determine questions of criminal or civil liability. 124. Fifthly, he considered that the proposed questions would expose the jury to a risk of making contradictory and conflicting findings. 125. Sixthly, the judge found that the claimant had failed to show, even arguably, that there were strong grounds for disturbing the decision of the coroner. 126. The claimant ’ s grounds relating to the short-form verdicts were adjourned generally with liberty to both parties to apply to restore. The claimant subsequently agreed that no further action would be taken in relation to these grounds because, inter alia, even if the judicial review was successful the only remedy for the family would be for the court to order a fresh inquest and the claimant did not “see any great benefit in re-hearing all the evidence to enable a different jury to come to a verdict, particularly bearing in mind the very high cost of holding such an inquest”. 5. Verdict 127. On 12 December 2008 the jury returned an “open verdict”. In answering the questions left to them the jury found as follows: (a) that Charlie 12 did not shout “armed police”; (b) that, while Mr de Menezes did stand up before being grabbed in a bear hug by one of the surveillance officers, he did not move towards the SFOs; (c) that the general difficulty in identifying the man under surveillance in the time available and the innocent behaviour of Mr de Menezes (which may have increased suspicion) were not contributory factors to his death; (d) that the following were contributory factors to his death: the failure to obtain and provide to surveillance officers better photographic images of the failed bomber Hussain Osman; the fact that the views of the surveillance officers regarding the identification of the suspect were not accurately communicated to the command team and the SFOs; the failure by police to ensure that Mr de Menezes was stopped before he reached public transport; the fact that the position of the cars containing the SFOs was not accurately known by the command team as the SFO teams were approaching Stockwell underground station; the shortcomings in the communications system between various police teams on the ground; and a failure to conclude at the time that surveillance officers could have been used to carry out the stop on Mr de Menezes at Stockwell underground station; and (e) it was not clear whether the pressure on police after the suicide attacks in July 2005 was a contributory factor to Mr de Menezes ’ death. 6. The coroner ’ s report 128. After the verdict, the coroner delivered a report as required under Rule 43 of the Coroners Rules 1984. In the report he identified MPS systems and practices which gave rise to concern and the risk that other deaths might arise in the future. He further identified action which should be taken to prevent the occurrence or continuance of such circumstances or to eliminate or reduce the risk of death created by such circumstances. The coroner also reviewed material indicating which remedial steps had already been taken to develop police practice since the events of July 2005. 129. In the report the coroner expressed concerns regarding the command structure employed by the police on 22 July 2005 and observed that the Association of Chief Police Officers (ACPO) manual on the police use of firearms and the command structure should be reviewed. He also made specific recommendations concerning the role of the DSO, who was responsible for ordering any intentional shot that might be required in anti-terrorist operations. 130. The coroner also reported on the communication problems that the jury found had contributed to the death of Mr de Menezes. He recommended that changes should be made to the systems and methods of communication to ensure that there was better information available to enable accurate identification to be made and communicated and to ensure that appropriately trained police officers were available to deal with possible terrorist threats on the basis of as much up-to-date information as possible. 131. Finally, the coroner made recommendations regarding the recording of briefing and control-room activity and recommended that the practice of police witnesses conferring before recording their accounts of events should cease. H. The second prosecutorial decision 132. Following the inquest, further meetings and exchanges of correspondence took place between the CPS and Mr de Menezes ’ family. On 26 March 2009 the family asked the DPP to review the decision not to prosecute in light of new evidence which had emerged at the inquest. 133. On 8 April 2009 the DPP confirmed by letter that there remained insufficient evidence to prosecute any individual. 134. Mr de Menezes ’ family did not apply for leave to seek judicial review of this decision, considering that there would be no prospect of success in light of the previous judicial-review action. The factual matrix had not significantly changed: the claim would have been on similar grounds to the previous claim for review and was therefore bound to fail. I. Confirmation of decision not to recommend disciplinary proceedings 135. By letter dated 2 October 2009, the Chairman of the IPCC rejected the family ’ s request to review its decision not to initiate disciplinary proceedings as no new evidence had emerged during the inquest to justify bringing disciplinary charges against any individual officer. 136. He noted that the trial of the OCPM and the inquest had confirmed the conclusion of the IPCC that Mr de Menezes was killed because of mistakes that could and should have been avoided. Indeed, the trial of the OCPM, the coroner ’ s report, the IPCC recommendations, Her Majesty ’ s Inspectorate of Constabulary, the MPA and the MPS had all recognised the organisational failings that led to his death. Major efforts had been made to rectify these organisational failings and it was necessary to take them into account when judging the individual culpability of the officers concerned. Every independent judicial, prosecuting and disciplinary authority which had considered the conduct of the officers had concluded that individual criminal or disciplinary charges were not merited. 137. In respect of Charlie 2 and Charlie 12, there was insufficient evidence to undermine their claim that they honestly believed they were dealing with a suicide bomber or to warrant proceedings based on the disciplinary offences of using excessive force or abusing authority. The officers had had at best five to ten seconds to assess whether to shoot to kill and given the overall scene of confusion, coupled with the stress of the circumstances, it was not possible to conclude that the mistakes which were made were deliberate or negligent. 138. With regard to Commander McDowall, the IPCC concluded that it was not likely that any tribunal would find that failings which occurred after he set his strategy were due to negligence on his part. 139. As for Commander Dick, the IPCC had regard to the criminal jury ’ s unambiguous conclusion that she had no personal culpability, especially as no evidence had emerged at the inquest which would cause a disciplinary tribunal to ignore this finding. 140. The IPCC considered that there was no evidence that might cause a tribunal to accept the jury ’ s rider in respect of Commander Dick but not in respect of Trojan 80 or DCI C. 141. In respect of “James”, the IPCC accepted that the degree of doubt as to the identity of Mr de Menezes was not communicated sufficiently clearly by the surveillance team. However, the IPCC concluded that this was the result of technical as well as personal shortcomings, the speed and stress of the circumstances and the lack of an unambiguous communications process. J. A civil action for damages 142. A civil action in damages was brought by the family of Mr de Menezes (including the applicant) against the Commissioner of the Police of the Metropolis. This was settled by way of mediation during the week of 16 November 2009. The settlement was on a confidential basis. K. Operational changes implemented following the shooting of Mr de Menezes 143. Following the death of Mr de Menezes, the MPS took a number of steps to improve its methods of command and control in counter-terrorism operations. In particular a common command model was introduced for planned firearms operations, a smaller team, or “cadre” of firearms commanders was formed, a new cadre of ACPO officers was created to deal with high-risk counter-terrorism operations and a new ACPO Firearms Manual was published. 144. In addition, a Surveillance Command was formed to provide consistency of training, procedure and professional practice and to create a platform for increased interoperability (that is, how different units and personnel work together operationally) with other departments and national units. A structured rotation of teams between counter-terrorism and crime operations was implemented to familiarise personnel in both types of operation. 145. Furthermore, a new counter-terrorism control room came into operation and steps were taken to clarify the roles and responsibilities of control-room staff and to provide them with high-quality training. Operational delivery of a new secure photo-imaging system for transmitting images of suspects and other data also took place. Audio-recording is now available in the control room, which is activated when dealing with any suicide-bombing threat, and a new and evolving covert airwave communication system has been introduced to ensure effective radio communications are available throughout the London underground system as well as above ground. 146. Pursuant to ACPO guidance issued in October 2008, the practice of officers writing up their notes together after an incident has ceased in cases where police officers have discharged firearms. Internal instructions drawn up in consultation with the IPCC and DPS have since extended this change of practice to officers involved in other (non-shooting) death and serious-injury cases. | This case concerned the fatal shooting of a Brazilian national mistakenly identified by the police as a suicide bomber. The applicant, his cousin, complained that the State had not fulfilled its duty to ensure the accountability of its agents for his death because the ensuing investigation had not led to the prosecution of any individual police officer. |
312 | Prevention of terrorism | THE CIRCUMSTANCES OF THE CASE 9. The applicants are journalists with the national daily newspaper Cumhuriyet (“The Republic”) or managers of the Cumhuriyet Foundation, the principal shareholder of the company that publishes the newspaper. 10. Cumhuriyet was established in 1924 and is one of the oldest newspapers in Turkey. It is known for its critical stance towards the current government and for its particular attachment to the principle of secularism. It is regarded as a serious newspaper of the centre-left. The applicants ’ placement in detentionPolice custody Police custody Police custody 11. On 31 October 2016 the applicants, with the exception of Akın Atalay, who was abroad at the time, were taken into police custody by the Istanbul police. They were suspected of committing offences on behalf of organisations considered by the Government to be terrorist organisations, including, in particular, the PKK/KCK (the Kurdistan Workers ’ Party / Kurdistan Communities Union) and an organisation referred to by the Turkish authorities as “FETÖ/PDY” (“ Fethullahist Terror Organisation / Parallel State Structure”), and of disseminating propaganda on their behalf. 12. The same day, on the instructions of the Istanbul public prosecutor ’ s office, the Istanbul police carried out searches at the applicants ’ homes and seized computers and other IT equipment belonging to them. 13. Still on 31 October 2016, the applicants in police custody lodged an objection challenging their detention and seeking their release. In a decision of 2 November 2016 the Istanbul 4th Magistrate ’ s Court dismissed the objection. 14. The applicants concerned were questioned at the police station about their alleged acts. They denied belonging to or assisting any illegal organisation. 15. On 4 November 2016 the nine applicants in police custody appeared before the Istanbul public prosecutor (“the public prosecutor”) and were again questioned about their alleged acts. The public prosecutor asked them questions relating mainly to articles published in Cumhuriyet and to the newspaper ’ s editorial stance. He asked the applicants whether they had been instructed by the leaders of illegal organisations, and in particular FETÖ/PDY, to align the newspaper ’ s editorial stance with criticisms directed by alleged members of the latter organisation against the political authorities. He also questioned them about the newspaper ’ s funding and its advertising revenue. 16. During questioning the applicants concerned rejected the allegations that they had acted in concert with outside sources in publishing articles in the newspaper, and denied belonging to any illegal organisation. They contended that the criminal investigation – which, in their view, called into question the assessment of political events and the defence of public freedoms carried out by the journalists of Cumhuriyet – amounted to a breach of freedom of expression and freedom of the press. 17. Following this questioning the public prosecutor requested the competent judge to place the applicants, with the exception of Akın Atalay, in pre-trial detention, on the grounds that they were suspected of assisting criminal organisations without being members of them and of disseminating propaganda in favour of those organisations (offences under Article 220 §§ 7 and 8 of the Criminal Code (“the CC”)), while acting in full association with them from a moral and factual point of view. 18. On 11 November 2016 the applicant Akın Atalay returned to Turkey. On his arrival in the country he was taken into police custody. On the following day, 12 November 2016, he was brought before the Istanbul magistrate. Placement in pre-trial detention (a) Regarding all the applicants 19. On the night of 4 November 2016 the applicants, with the exception of Akın Atalay, appeared before the Istanbul 9th Magistrate ’ s Court and were questioned about their alleged acts and the suspicions against them. At the end of the hearing, on 5 November 2016, the magistrate, echoing the approach taken in the public prosecutor ’ s observations and on the basis of the latter ’ s allegations, and taking into consideration the content of several articles that had appeared in Cumhuriyet and some comments made on social media, ordered the pre-trial detention of the applicants concerned. The applicant Akın Atalay was placed in pre-trial detention at the close of the hearing on 12 November 2016, on the same grounds. The magistrate considered, in relation to all the applicants, that articles containing implicit propaganda in favour of the armed terrorist organisations FETÖ and the PKK had been published in the daily newspaper Cumhuriyet, and that there were strong suspicions that the suspects had been responsible for the newspaper ’ s ongoing activities consisting in promoting and disseminating propaganda on behalf of those terrorist organisations. The magistrate considered in that connection that the applicants were under investigation for offences including assisting illegal organisations (Article 220 § 7 of the CC) and disseminating propaganda in favour of them (Article 220 § 8 of the CC) and for acts potentially coming within the scope of the offence of carrying out activities on behalf of terrorist organisations without being members of them, an offence under Article 220 § 6 of the CC. The magistrate referred to the fact that this offence was among those listed in Article 100 § 3 of the Code of Criminal Procedure (“the CCP”) – the so-called “catalogue offences” – for which a suspect ’ s pre-trial detention was deemed justified in the event of strong suspicion. 20. The magistrate also considered that if the applicants were released pending trial they were liable to abscond. He observed in that connection that in the previous investigations concerning Cumhuriyet journalists the suspects had fled, by lawful or unlawful means, as soon as an opportunity had arisen. The magistrate also referred to the risk of deterioration of the evidence if the applicants were released pending trial, and the risk that alternative measures to detention might be insufficient to ensure the suspects ’ participation in the criminal proceedings. (b) Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel and Turhan Günay 21. Regarding these eight applicants the Istanbul magistrate considered, like the public prosecutor, that their placement in pre-trial detention was justified by the existence of strong suspicions that they had committed the alleged offences. The magistrate noted at the outset that the applicants Güray Tekin Öz, Hakan Karasinir, Hacı Musa Kart and Mustafa Kemal Güngör were members of the board of management of the Cumhuriyet Foundation; Bülent Utku was a member of the board of management and a level 2 authorised signatory of the media company Yenigün; Önder Çelik was a member of the board of management of the Cumhuriyet Foundation and of the board of Yenigün; Ahmet Kadri Gürsel was an editorial adviser to the newspaper Cumhuriyet; and Turhan Günay was a member of the board of Yenigün. The magistrate observed that according to the statements of the applicant Önder Çelik, the media company Yenigün was the company responsible for publishing Cumhuriyet, and that the Cumhuriyet Foundation ranked above Yenigün and the newspaper Cumhuriyet in the institutional hierarchy. In other words, the foundation was the institution which held the trademark and publishing rights in relation to the newspaper, and leased the right to use the name Cumhuriyet to the media company Yenigün. In the light of these observations the magistrate considered that the articles and news items published in the daily newspaper Cumhuriyet indeed came under the responsibility of the members of the board of management of the Cumhuriyet Foundation and the board of the media company Yenigün, and hence of the applicants in question. 22. The magistrate further noted that, when the eight suspects had joined the board of the foundation and that of the media company following the elections in 2013 and early 2014, Cumhuriyet ’ s editorial stance had changed noticeably. The newspaper, contrary to the foundation ’ s aims, had then engaged in manipulation against the State; had attempted to influence public opinion in a manner at odds with the world view of its usual readership; had published false information resulting from the machinations of destructive separatist movements and from the statements of the leaders of terrorist organisations containing calls to violence; had attempted to portray the terrorist organisations as legitimate; and had alleged that the State had links to terrorist organisations. 23. Without accusing any of the applicants of writing a specific article, the magistrate, like the public prosecutor, referred to certain articles written by other journalists allegedly under the influence of the applicants and published during the period when the latter had occupied managerial positions in the Cumhuriyet Foundation. The articles referred to were the following. ( i ) An article dated 14 March 2015 containing an interview with one of the leaders of the PKK and allegedly amounting to propaganda in favour of that organisation, describing its militants as “ guerrilla fighters ” and reporting on the comments made by the PKK leaders concerning certain topical issues (and in particular the PKK ’ s conditions for laying down its weapons). (ii) Articles published on 1 April 2015 entitled “Remarkable account given by activists half an hour before being killed (by police officers)” and “This action [the kidnapping] is a method we were forced to use”. The articles had consisted solely of an interview with one of a group of left-wing extremists who had taken a public prosecutor hostage in his office in a bid to expose the law-enforcement officers who had killed a demonstrator. After hearing the demands of the militants for the identity of the police officers who had allegedly killed the demonstrator B. to be disclosed in a live television broadcast and for the police officers concerned to face trial and not benefit from impunity, the reporter, A.S., had challenged the interviewee by questioning whether violence by the militants would solve the problem. Shortly afterwards, the militants concerned and the public prosecutor whom they had taken hostage died during a rescue operation by the security forces. It was alleged that the articles in question had conveyed the terrorists ’ message to the public by printing a large photograph of them (taken while they were holding a gun to the head of their hostage) and by using the adjectives “young and determined” to describe one of the terrorists after interviewing one of the militants who had been involved in the kidnapping. (iii) An article published on 2 June 2015 concerning Selahattin Demirtaş, which stated that the PKK was mindful of environmental and gender equality issues. (iv) An article published on 25 July 2015 entitled “War at home, war in the world”, in which the security forces ’ actions to combat terrorist organisations were described as “war”. (v) An article published on the day of the attempted military coup of 15 July 2016, entitled: “He went missing for a week ... we ’ ve discovered where Erdoğan was”, which gave details of the place where the President had been on holiday. (vi) An interview with one of the PKK ’ s leaders, M. Karayilan, published on 21 December 2015 under the heading “If they don ’ t agree to autonomy, we ’ ll consider separation”, which reported that Mr Karayilan described the PKK ’ s terrorist acts as “resistance” and the State ’ s anti ‑ terrorist action as a “civil war that the State can ’ t win”. (vii) An article of 18 July 2016 entitled “Danger on the streets”, referring to the presence of radical groups among the persons protesting against the coup attempt and reporting that, during the demonstrations against the attempted coup, some demonstrators had damaged monuments commemorating the victims of violence against minorities or had attacked members of the Alevi minority. It was alleged that the article had attempted to divide society by provoking distrust towards the demonstrators. (viii) An article of 19 July 2016 entitled “The witch hunt has begun”, reporting on the criticisms and proposals of the main opposition political party, the CHP ( Cumhuriyet Halk Partisi – People ’ s Republican Party). The latter had stated that any action against possible supporters of the coup should be carried out in compliance with the rule of law, that all the political parties should take a critical look at their own conduct in order to ascertain how a religious sect could have infiltrated the State apparatus to such an extent, and that political leaders should refrain from stirring up hostility in society. The article had also criticised the dismissal of large numbers of civil servants suspected of belonging to the Gülenist movement. It was alleged that the article had questioned the extent and legitimacy of the action against the instigators of the attempted coup. (ix) An article of 19 July 2016 entitled “No one at the rallies is talking about democracy”, reporting on the demonstrators ’ anti-democratic demands. The article was alleged to have denigrated citizens voicing their reactions to the attempted coup. (x) An article of 8 July 2015 entitled “What we ’ re doing is journalism; what you ’ re doing is treason”, reporting on remarks made by the public prosecutor Ö.Ş. alleging that the organisation MİT (the national intelligence agency) had concealed the Reyhanli attack from the judicial authorities, in the following terms: “MİT had information on the Reyhanli massacre but did not share that information with the police”. The prosecutor Ö.Ş. had subsequently been arrested in connection with a criminal investigation concerning some judges and members of the security forces who were alleged to be militants of the organisation FETÖ, and relating to the affair known as “The MİT lorries”. (xi) An article dated 13 February 2015 entitled “The secret in the lorries revealed” which stated, citing recordings of telephone calls between the leaders of the Turkmen forces in Syria, that the consignment of weapons and ammunition transported from Turkey to Syria in lorries belonging to MİT had not been intended for Turkmen militia but for the jihadist organisation Ansar Al ‑ Islam. (c) Mehmet Murat Sabuncu 24. In the case of the applicant Mehmet Murat Sabuncu, the magistrate noted that he was the editor-in-chief of the daily newspaper Cumhuriyet. The magistrate considered, like the public prosecutor ’ s office, that his placement in pre-trial detention was justified on the basis of strong suspicions that he had committed the alleged offences. 25. The magistrate referred, in particular, to his findings concerning the change in the editorial stance of the newspaper Cumhuriyet following the election of the other applicants to the board of management of the Cumhuriyet Foundation and the board of the media company Yenigün in 2013 and early 2014. In the magistrate ’ s view the applicant Mehmet Murat Sabuncu should be held responsible for the articles and headings published in Cumhuriyet, in his capacity as the newspaper ’ s publication director. (The publication director was appointed by the board of management of the Cumhuriyet Foundation.) By way of example the magistrate cited the same materials relied on in relation to the other applicants (see paragraph 23 above). According to the magistrate, this material had been aimed at persistently undermining the State ’ s efforts to combat the PKK and FETÖ/PDY; had gone beyond the aim of criticism and reporting; had conveyed false information resulting from the machinations of destructive separatist movements and from the statements of the leaders of terrorist organisations containing calls to violence; had attempted to portray the terrorist organisations as legitimate, innocent and victims of the authorities ’ actions; and had alleged that the State had links to terrorist organisations. (d) Akın Atalay 26. On 12 November 2016, the day after his return to Turkey, the applicant Akın Atalay was brought before the Istanbul 9th Magistrate ’ s Court. The magistrate ordered his pre-trial detention on the same grounds as those cited in the case of the other applicants. Like the public prosecutor, the magistrate considered that Akın Atalay ’ s placement in pre-trial detention was justified by the existence of strong suspicions that he had committed the offences alleged by the public prosecutor. Reiterating the considerations outlined in the order he had issued for the detention of the applicants Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel, Turhan Günay and Mehmet Murat Sabuncu (see paragraphs 21 and 25 above), the magistrate found that, following the changes to the composition of the board of management of the Cumhuriyet Foundation, including Akın Atalay ’ s appointment as chairman of the executive committee, the newspaper Cumhuriyet had begun targeting State institutions and had published a large number of articles that could be regarded as propaganda in favour of terrorist organisations and were liable to give the public a favourable impression of those organisations. In the magistrate ’ s view, even if the investigation did not relate to any articles written by Akın Atalay himself, there was a strong suspicion of guilt on the part of the senior members of the foundation ’ s board of management, including the applicant, on account of their influence over the impugned material. The magistrate referred in that connection to the articles published in Cumhuriyet which had likewise been mentioned in his order for the detention of the applicants Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel and Turhan Günay (see paragraph 23 above). (e) The applicants ’ objection 27. On 14 November 2016 the applicants collectively lodged an objection against the orders for their pre-trial detention. 28. In a decision of 18 November 2016 the Istanbul 10th Magistrate ’ s Court dismissed the objection. The magistrate considered that the suspects could be held responsible for the propaganda activities in favour of terrorist organisations because they had allegedly assisted the latter in achieving their aims. Extension of the pre-trial detention 29. On 2 December 2016 the applicants, with the exception of Akın Atalay, lodged an application for release pending trial. In a decision of the same day the Istanbul 7th Magistrate ’ s Court refused the application. On 12 December 2016 the applicants concerned lodged an objection against that decision which was dismissed by the Istanbul 8th Magistrate ’ s Court on 16 December 2016. 30. In the meantime, on 12 December 2016, the applicant Akın Atalay had lodged an application for release pending trial. The Istanbul 6th Magistrate ’ s Court refused the application on the same day. On 19 December 2016 the applicant lodged an objection against that decision which was dismissed on 21 December 2016 by the Istanbul 7th Magistrate ’ s Court. 31. On 30 December 2016 and 30 January 2017 the Istanbul 12th Magistrate ’ s Court, on the basis of the examination of the file ( a procedure permitted during the state of emergency), ordered the continued pre-trial detention of all the applicants. The magistrate considered that the case file contained specific evidence demonstrating the existence of strong suspicions that the applicants had committed the alleged offences. He noted that the evidence had not yet all been gathered and that the offences of which the applicants were accused were among those listed in Article 100 § 3 of the CCP (the so-called “catalogue offences”). The magistrate further considered that, in view of the seriousness of the alleged offences, there was a risk that the applicants would abscond if they were released pending trial. He also took into consideration the risk of deterioration of the evidence, noting that the claimants and victims of the incidents in issue had not yet all been identified and/or that statements had not yet been taken from them. 32. On 11 January and 1 February 2017 the applicants lodged appeals against the orders of 30 December 2016 and 30 January 2017 for their continued pre-trial detention. The appeals were dismissed on 17 January and 3 February 2017 respectively by the Istanbul 13th Magistrate ’ s Court. The magistrate found that the impugned orders had complied with the procedure and the law, that the reasons for the orders continued to apply and that no new evidence had been added to the file capable of leading to reconsideration of the applicants ’ continued detention. 33. On 6 April 2017, after the public prosecutor ’ s office had filed the bill of indictment with the Istanbul 27th Assize Court on 3 April 2017, the applicants applied to that court for release pending trial. On 19 April 2017 the Assize Court rejected their application and ordered their continued pre ‑ trial detention. The court considered that the case file contained specific evidence demonstrating the existence of strong suspicions that the applicants had committed the alleged offences, and that it was even likely that those suspicions would be reinforced by further evidence. The Assize Court considered that the applicants were liable to abscond if they were released, that their continued pre-trial detention complied with the criteria laid down by the Court with regard to Article 5 of the Convention, that their detention was proportionate, and that no new evidence had been added to the file capable of leading to reconsideration of their continued pre-trial detention. On 25 April 2017 the applicants lodged an objection against that order and applied for release pending trial. On 28 April 2017 the Istanbul 27 th Assize Court rejected the applications for release on the grounds that the order of 19 April 2017 had not contained any irregularities and had complied with the procedure and the law. It transferred the objection to the Istanbul 1st Assize Court. In a decision of 4 May 2017 that court dismissed the applicants ’ objection, finding that the case file contained specific evidence demonstrating the existence of strong suspicions that the applicants were guilty, that there was a risk that they would abscond, and that the current length of their pre-trial detention was not disproportionate in view of the prison sentences they were liable to incur. 34. On 25 April and 17 May 2017 the applicants applied to the Istanbul 27 th Assize Court for release pending trial. In an order of 18 May 2017 the Assize Court, taking into consideration the nature and content of the offences of which the applicants were accused and the state of the evidence against them, ordered their continued pre-trial detention and rejected the applications of 25 April and 17 May 2017. 35. On 28 July 2017, at the close of the first hearing, held from 24 to 28 July 2017, the Istanbul 27th Assize Court ordered the release pending trial of the applicants Önder Çelik, Turhan Günay, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz and Bülent Utku, after taking statements in their defence against the charges filed by the public prosecutor ’ s office on 3 April 2017. The court considered that there was sufficient information in the case file concerning their responsibility in their capacity as members of the board of management of the Cumhuriyet Foundation and the board of the media company Yenigün, and that these accused had no connection with the other accused who had been summoned but who had failed to appear for trial. The court therefore considered that all the relevant evidence in the case concerning these applicants had been gathered and that, in view of the sentences to which the applicants were liable, the risk of their absconding was no longer relevant. 36. Also on 28 July 2017, the Istanbul 27th Assize Court ordered the continued pre-trial detention of the applicants Mehmet Murat Sabuncu and Akın Atalay. The court held that the offence of which they were accused in the indictment, namely assisting an armed organisation, could take a variety of forms and that the evidence in the case file should be assessed as a whole, bearing in mind that the activities of these applicants, acting in collaboration with the accused who were absent (those who had been summoned but had failed to appear, including C.D., former publication director of Cumhuriyet ), were at odds with the values laid down in the constitution of the Cumhuriyet Foundation. The objections lodged by the applicants Mehmet Murat Sabuncu and Akın Atalay against the order of 28 July 2017 were rejected by the Istanbul 28th Assize Court in a final decision of 23 August 2017. The court held that “the impugned order complied with the procedure and the law”. 37. At the close of the second hearing on 11 September 2017, the third hearing on 25 September 2017, the fourth hearing on 31 October 2017, and the fifth hearing on 25 December 2017, the Istanbul 27th Assize Court ordered the continued pre-trial detention of the applicants Mehmet Murat Sabuncu and Akın Atalay, on exactly the same grounds as those set out in its order of 28 July 2017 (see paragraph 36 above). The two applicants lodged objections against the orders of 11 September, 25 September and 31 October 2017. Their objections were rejected by the Istanbul 28 th Assize Court in final decisions dated 12 October and 17 November 2017. The Assize Court referred to “the evidence demonstrating the existence of strong suspicions of guilt, the nature and content of the offences in question, the state of the evidence and the fact that there [had] been no change in the state of the evidence”. 38. In the meantime, at the close of the third hearing on 25 September 2017, the Istanbul 27th Assize Court ordered that the applicant Ahmet Kadri Gürsel be released pending trial. The court found that the evidence relating to him had been gathered and that there were no grounds to suspect that he would put pressure on the accused who had failed to appear or on the witnesses whose evidence had not yet been heard. 39. At the close of the hearing held on 9 March 2018, the Istanbul 27 th Assize Court ordered the release pending trial of the applicant Mehmet Murat Sabuncu. The court found that the evidence concerning the accused had been gathered; that there was no longer a risk that he would tamper with the evidence; that there was no longer a strong suspicion that he would put pressure on the accused who were absent or on the witnesses who had not yet been heard; that his continued pre-trial detention would be a disproportionate measure for the accused; and that the same benefits would be achieved by judicial supervision in the form of an order barring the applicant from leaving the country. 40. On conclusion of the hearing of 24 and 25 April 2018 the Istanbul 27 th Assize Court, after convicting the applicant Akın Atalay, among others, of the offence of assisting armed terrorist organisations under Article 220 § 7 of the CC, ordered his release until such time as his conviction became final, and issued an order barring him from leaving the country. The court considered that the reasons for his continued detention referred to in the previous orders no longer applied and that, in view of the sentence imposed on the applicant, the risk of his absconding was no longer relevant. The indictment of 3 April 2017 Regarding all the accused Regarding all the accused Regarding all the accused 41. On 3 April 2017 the Istanbul public prosecutor ’ s office filed a bill of indictment with the Istanbul 27th Assize Court against nineteen individuals including the applicants. They were accused mainly of lending assistance to terrorist organisations without being members of them (offence under Article 220 § 7 of the CC). With regard to the applicants it was primarily alleged that, over a period of three years leading up to the attempted coup of 15 July 2016, the editorial stance of Cumhuriyet had changed as a result of their influence, running counter to the editorial principles to which the newspaper had adhered for ninety years. 42. The public prosecutor considered that, by publishing articles which were glaringly at odds with the world view of its readers, the newspaper had conveyed manipulative and destructive information about the State. He maintained that the newspaper had published statements by leaders and prominent figures of terrorist organisations and had attempted to undermine Turkey ’ s credibility internationally, in particular by alleging that the government had ties to international terrorist organisations and that the National Intelligence Organisation (MİT) had supplied arms to extremist groups in Syria. In the view of the prosecutor ’ s office, since 2013 and under the leadership of C.D., former editor-in-chief of Cumhuriyet, the newspaper had become the champion of terrorist organisations such as FETÖ/PDY, the PKK and the DHKP/C (People ’ s Revolutionary Liberation Party/ Front). According to the public prosecutor, the newspaper had not acted within the bounds of freedom of expression since its managers had attempted, deploying the tactics of “asymmetric warfare”, to manipulate public opinion in order to slander the government and the President of the Republic. The prosecutor maintained that the newspaper, by manipulating and disguising the truth, had acted in accordance with the aims of the terrorist organisations and had thus attempted to create domestic upheaval in order to render the country ungovernable. 43. In order to demonstrate that the publication of the articles and headings in question had resulted from a process whereby teams with close links to the above-mentioned illegal organisations had taken control of the newspaper ’ s editorial policy, the public prosecutor ’ s office referred to the witness evidence which it had gathered against the applicants. That evidence, given either by former Cumhuriyet journalists who had left the newspaper following the change of management after the events referred to in the bill of indictment, or by journalists who still worked for the newspaper but currently occupied non-managerial positions, indicated in general that following the death in 2010 of the publication director I.S. (who had socialist leanings), the newspaper ’ s management had gradually been changed by the foundation, with Kemalist and nationalist journalists being replaced by journalists who shared the vision of the Gülenist movement and the United States, that the new management had had no hesitation in publishing articles containing points of view similar to those defended by organisations such as FETÖ and the PKK, and that the management had had the final say over the titles of articles, sometimes changing the titles proposed by the authors. The great majority of these witnesses took over the management of the newspaper Cumhuriyet following the applicants ’ placement in detention. The relevant parts of the main witness statements against the applicants can be summarised as follows. ( i ) A.K. (news coordinator of the newspaper Cumhuriyet ): This witness had worked as the newspaper Cumhuriyet ’ s news coordinator since 1994. In a statement to the public prosecutor he said that the board of management of the Cumhuriyet Foundation appointed the publication director, who in turn appointed the editor-in-chief. A body known as the executive committee, which did not feature in the foundation ’ s constitutive instrument, had been created by the new board of management. [The applicant] Akın Atalay had been appointed as chairman of the committee. The publication director was the only person authorised to intervene in an article due to be published in the newspaper and was responsible for choosing the article headings. As a rule, the journalists were not responsible for the headings. The heading “Incomplete democracy” had been added by the then publication director. A.K. explained that the publication of the statements of leaders of the PKK ’ s armed terrorist organisations had reflected the preferences of the publication director. A.K. himself had not been in favour. He considered it possible that the articles on the “ MİT lorries” and the “former prosecutor C.K.”, published under the name of the previous publication director, C.D., may have demonstrated that the “ cemaat ” (the Gülenist community) regarded Cumhuriyet under its publication director, C.D., as the most appropriate newspaper in which to air their views following the closure, or loss of credibility, of their own media outlets. (ii) The witness A.A. ( a journalist with the newspaper Cumhuriyet ): This witness stated that he had joined the newspaper in 2006 and had been working as a journalist in its social and political affairs department for about ten years. He explained that even if the text of an article had been written by a journalist, the heading could be changed by the editors. In his article published by the newspaper under the heading “Incomplete democracy” he had emphasised the fact that the main political forces had been present at the pro-democracy gathering held in Yenikapı, and that during the gathering there had been a call to join forces against the military coup. The editorial team had given the article the heading “Incomplete democracy” because the Peoples ’ Democratic Party (“the HDP”, a pro-Kurdish party) had not been invited to take part. He had thought that the heading might offend people and might give rise to legal liability, and had said this to the publication director. A.A. added that he had occasionally received criticism from readers regarding, for instance, the increase in the number of news items relating to the political party the HDP, which upset some readers. As a Kemalist, he too had felt uncomfortable with the news items published by the newspaper concerning the PKK. He explained that the publishing policy was determined by the board of management of the foundation and the newspaper ’ s editorial board. In particular, the foundation ’ s board of management had the authority to determine the “oppositional” nature of the newspaper ’ s editorial stance. (iii) M. İ. ( a journalist with the newspaper Cumhuriyet ): This witness said that he had worked as a journalist with Cumhuriyet since 1993. He stated that the executive committee of the Cumhuriyet Foundation ’ s board of management did not intervene directly in journalists ’ work but could do so through the publication director. When I.T. had begun working for the newspaper, the witness had gathered from his articles that he had close links to the “ cemaat ”. He would have preferred not to work with I.T., but that had been the choice of the management at that time. Sensitive articles written by the journalists were published in the newspaper after being assessed by the editors. The articles on the “ MİT lorries” and the “former prosecutor C.K.” had been published in Cumhuriyet because FETÖ/PDY ’ s own newspapers had no longer enjoyed a good reputation. (iv) R.Z. (journalist and editor): This witness stated that after the death of İ .S. in 2010 the newspaper Cumhuriyet had changed direction as a result of the changes in the composition of the foundation ’ s board of management. Kemalist and nationalist journalists had been dismissed and journalists with ties to the Gülenists and susceptible to American influence had been recruited. (v) M.F. (journalist and editor): This witness stated that the turning-point in the change of the newspaper ’ s editorial policy had been the death of İ .S in 2010. The recent coverage concerning Fethullah Gülen and Kandil was the result of that change. (vi) İ .Y. (former editor-in-chief and former publication director of Cumhuriyet ): This witness explained that he had been the newspaper ’ s editor-in-chief from 1992 to 2000. He had resigned in 2000 and had been publication director until 2014. In his view, the articles published after C.D. ’ s appointment as publication director had been at odds with the publishing principles set out in the foundation ’ s constitution. He said that it was Akın Atalay who had recommended C.D. as publication director. The foundation was responsible for appointing the journalists, after consultation with the editors-in-chief. (vii) A.C. (former member of the foundation ’ s board of management): This witness stated that one of the newspaper ’ s principles had been violated when the remarks made by the head of the terrorist organisation FETÖ, Fethullah Gülen (“[They] called my humble home a mansion”), had been published together with his photograph on the newspaper ’ s front page, above the Cumhuriyet logo. (viii) T.A. (journalist and editor): This witness stated that a comparison of the headings used by the newspapers associated with FETÖ/PDY and those printed in Cumhuriyet could create the impression that they had been written in coordination with each other. (ix) L.E. (journalist and editor): This witness stated that the interview by H. Ç. ( a journalist with Cumhuriyet ) published by the newspaper Zaman under the heading “I would not describe the Gülenist community as a terrorist organisation” was one of the most tangible pieces of evidence that the newspaper Cumhuriyet had been taken over by that organisation. The fact that the newspapers Zaman and Cumhuriyet had printed the headings “The knotty problem of Azaz ” and “Bomb at the heart of the State ” within a day of each other had been arranged entirely by Fethullah Gülen. Persons who had not been approved by Fethullah Gülen were not invited to the Abant meetings. The name “Peace [at Home] Council” had been determined by Fethullah Gülen himself and supplied to Cumhuriyet. Specific individual charges (a) The applicant Mehmet Murat Sabuncu 44. The prosecutor ’ s office accused the applicant Mehmet Murat Sabuncu of having been in contact with certain individuals, including a former judge who had since been arrested and twenty-three other suspects, thirteen of whom had used the encrypted messaging application ByLock and had subsequently been placed under investigation on suspicion of membership of the organisation FETÖ/PDY. 45. The prosecutor ’ s office further maintained that during the period when the applicant had been the publication director of Cumhuriyet, starting on 1 September 2016, he had been responsible for articles in the newspaper which the prosecutor described as “manipulative”, both in terms of the choice of articles and the exaggerated tone used in them in order to indoctrinate the public. The prosecutor ’ s office based its accusations in this regard on the allegedly provocative content of an article published on 22 October 2016 according to which members of the ruling party, the AKP, had asked for restrictions on the carrying of weapons by State officials or party sympathisers to be eased in order to quell a possible coup attempt, with the attendant risk that the persons carrying the weapons might also intervene during peaceful political demonstrations. 46. The prosecutor ’ s office also referred to the following items published during the two-month period when the applicant Mehmet Murat Sabuncu had not had sole responsibility for publication but had worked in tandem with Cumhuriyet ’ s editors-in-chief. ( i ) The article written by the journalist Aydin Engin and published on 13 July 2016, two days before the attempted coup, under the heading “Peace in the world, but what about at home?”. The article had criticised President Erdoğan ’ s alleged policy of tension and hostility directed, at domestic level, against citizens of Kurdish origin and former leaders of the ruling party in particular, and, at international level, against the leaders of neighbouring countries or of politically allied States, and had referred to a committee formed by the instigators of the attempted coup known as the “Peace at Home Council”. According to some informants, the article had thus announced the date of the planned coup. (ii) The article published on 15 July 2016, the day of the attempted coup, entitled “He went missing for a week ... we ’ ve discovered where Erdoğan was”, which allegedly gave details of the President ’ s whereabouts on the day before the attempted coup. (iii) The article published on 18 July 2016 entitled “Danger on the streets”, which referred to the presence of certain radical groups among the persons protesting against the attempted coup and which had allegedly attempted to sow divisions among the demonstrators. (iv) The article of 19 July 2016 entitled “The witch hunt has begun”, which had allegedly raised doubts as to the legitimacy of the actions taken against suspected members of FETÖ/PDY and other terrorist organisations which had infiltrated the State apparatus. (v) Another article published on 19 July 2016 under the heading “No one at the rallies is talking about democracy”. The article reported that, at the demonstrations organised by the ruling party, the AKP, the anti-coup demonstrators had shouted several religious or pro-Ottoman slogans or had engaged in the practice of dhikr ( zikr, the rhythmic repetition of the name given to God in Islam) rather than calling for democracy. It was alleged that the article had sought to humiliate citizens who had voiced their reaction to the attempted coup, and had undermined the sense of unity and solidarity expressed at the Yenikapi rally ( a rally organised by President Erdoğan and attended by the leaders of the other political parties with the exception of the pro-Kurdish party the HDP, which had not been invited) by using the expression “incomplete democracy”. (vi) The publication of a series of news items and interviews on the alleged disappearance while in police custody of Hurşit Külter, leader of the local branch of the pro-Kurdish party the DBP ( Demokratik Bölgeler Partisi – Democratic Regions Party). The publication of these items had allegedly enabled the PKK to use this as a subject for propaganda, although Hurşit Külter had subsequently turned up in Syria. 47. The prosecutor ’ s office also accused the applicant Mehmet Murat Sabuncu of posting tweets expressing support for the journalists who had been dismissed or prosecuted for working for the pro-Kurdish newspaper Özgür Gündem or the pro- Gülenist newspaper Zaman and containing extracts from an interview with Gülen ’ s family claiming that the latter had been slandered by the political authorities following the coup attempt. The applicant was also accused of posting tweets containing extracts from an interview given by Gülen himself to the BBC in which he had stated that he was not opposed to a process of dialogue and negotiation with Öcalan and the PKK in order to resolve the Kurdish problem. The prosecutor ’ s office considered that these tweets had served to denigrate the security forces ’ operations against FETÖ/PDY and the PKK. The tweets posted on the Twitter account @ muratsabuncum, and taken into consideration by the Constitutional Court in its assessment of the present case, read as follows. ( i ) “We stand side-by-side with our colleagues from Özgür Gündem ” (20 June 2016). (ii) “We have an honourable duty to oppose all pressure on journalism, past and present. The people knocking on the door of Radikal in the past are now knocking on Zaman ’ s door. Unacceptable” (14 December 2014). (iii) “We refuse ... Cumhuriyet will not comply with the publishing ban concerning the events of 17 December” ( a ban on publishing allegations of corruption made by certain public prosecutors, alleged to be members of FETÖ, against four government ministers) (26 November 2014). (iv) “ A police raid on the premises of the opposition newspaper is unacceptable” (30 October 2014). (v) “For the first time I ’ ve witnessed a statesman calling on an independent authority (the BDDK) to sink a bank. Only in the new Turkey.” (The BDDK is the banking regulation and supervisory authority.) (15 October 2014). (vi) “ A disgrace [emailprotected] evrenselgzt : M.B. and the editor-in-chief of the newspaper Taraf, M. Ş. Ç., charged and a prison sentence of 28-52 years sought” (22 May 2014). (vii) “M.A. [M.H.A.], H. Ş .T. ... They lost their jobs with the Star newspaper after a telephone call from the Prime Minister. Democracy is still a long, long way off here” (18 March 2014). (viii) “According to Gülen ’ s family, those who don ’ t know what it ’ s like to live with very little have slandered him” (9 March 2014). (ix) “One of the key points to emerge from the BBC interview with Gülen is that he is not against dialogue and negotiation with Öcalan and Kandil to find a solution to the Kurdish question” (27 January 2014). (b) The applicant Akın Atalay 48. In support of the charges against the applicant Akın Atalay the prosecutor ’ s office referred, among other material, to the following published items (the charges that were not subsequently taken into account by the Constitutional Court are not mentioned here). ( i ) The article of 14 March 2015 containing an interview with one of the leaders of the PKK and allegedly amounting to propaganda in favour of that organisation, describing its militants as “ guerrilla fighters ”, and reporting on the comments made by the PKK leaders concerning certain topical issues. (ii) The articles of 1 April 2015 concerning the incident in which a public prosecutor had been held hostage in his office by left-wing extremists. The articles in question had allegedly conveyed the terrorists ’ message to the public by printing a large photograph of them (taken while they were holding a gun to the head of their hostage) and by using the adjectives “young and determined” to describe one of the militants. (iii) The article of 2 June 2015 concerning Selahattin Demirtaş, which stated that the PKK was mindful of environmental and gender equality issues. (iv) The article published on 25 July 2015 under the heading “War at home, war in the world”, in which the security forces ’ actions to combat terrorist organisations were described as “war”. (v) An article published on 12 July 2016, three days before the attempted coup, written by the applicant Ahmet Kadri Gürsel and entitled “ Erdoğan wants to be our father”. The article criticised the President ’ s habit of forcing people whom he met to stop smoking, and alleged that this habit was part of his tendency to impose his totalitarian views on society. It proposed that people should refuse to comply by not putting out their cigarettes. The article was alleged to have conveyed a message designed to cause disorder in Turkey and to have predicted the coup attempt. (vi) The other article published on 15 July 2016, the date of the attempted coup, entitled “He went missing for a week ... we ’ ve discovered where Erdoğan was”, which gave details of the place where the President had been on holiday. (vii) The article published on 18 July 2016 entitled “Danger on the streets”, which referred to the presence of certain radical groups among the persons protesting against the attempted coup and which allegedly attempted to divide society by arousing distrust towards the demonstrators. (viii) The interview with one of the PKK leaders, M. Karayılan, published on 21 December 2015 under the heading “If they don ’ t agree to autonomy, we ’ ll consider separation ”, which reported on the views expressed by Mr Karayilan, who described the PKK ’ s terrorist acts as “resistance” and the State ’ s anti-terrorist actions as a “civil war” that the State could not win. (ix) The article of 19 July 2016 entitled “The witch hunt has begun”, which raised doubts as to the legitimacy of the action taken against the instigators of the coup attempt. (x) The article entitled “No one at the rallies is talking about democracy”, which allegedly sought to humiliate citizens expressing their reactions to the attempted coup. (xi) The article about the MİT lorries and the article concerning the explosives attack on the town of Reyhanlı. It was alleged that the articles, by stating that public officials may have committed criminal offences and provided assistance to certain terrorist groups, had tarnished Turkey ’ s image abroad. The tweets posted by the applicant Akın Atalay on the Twitter account @ av_akinatalay and taken into consideration by the Constitutional Court in its assessment of the present case, in so far as they related to the closing ‑ down of the television stations and newspapers allegedly belonging to the organisation FETÖ/PDY, read as follows. 14 December 2014: ( i ) “If we remain silent now, we ’ ll no longer have the right or the opportunity to speak out. We condemn the raid of the publishing groups Zaman and Samanyolu and the detentions.” (ii) “Some people refer to the past of the Cemaat (“Community”) media outlets and say ‘ What right have you got now to talk about solidarity? ’ ”. (iii) “It ’ s not for us to assess whether individuals are worthy of their rights and freedoms by examining their actions, past and present.” (iv) “We defend freedom of the press, not of individuals. We protect freedom itself, not a particular person or group. Yes, we ’ re being tested again.” (v) “It ’ s only when you take care not just of those who think like you and are close to you, but also those who think differently, or even those who have hurt you, that you have the right to say [I am a champion of freedom and a democrat].” (vi) “ Even if we knew that today ’ s victims would not question their own actions in defending illegal acts in the past, our position would not change ...”. (vii) “When Hrant was killed, we were ‘ the Armenian ’; yesterday we were the ‘ supporter of Ergenekon ’. Today we ’ re the ‘ supporter of the Cemaat ’ and tomorrow, if necessary, we ’ ll be ‘ the supporter of the AKP ’. The fact is, we ’ re just democrats ...” 27 October 2015: ( i ) “They question or criticise us, saying ‘ These members of the Cemaat have done you the greatest harm and injustice. Why are you defending them now? ’ ”. (ii) “Yes, this newspaper [ Cumhuriyet ] was treated very unjustly and suffered great harm. The media close to the Cemaat, in cooperation with the present government, were also involved in this illegal activity. We believe that this fact makes the upholding of rights, the law and freedoms more precious and more meaningful.” (iii) “We ’ re not expecting any thanks for doing this. Nowadays, our attitude is not determined by the identity or (criminal) record of the victim of the illegal act.” (iv) “Moreover, human rights, the law, rights and freedoms are for everyone, not just for the innocent.” (v) “We should recall Mary Magdalene ’ s words: ‘ Let he who is without sin cast the first stone ’ .” 28 October 2015: ( i ) “Let us take note: Bugün TV was closed down by the police at 4.33 p.m. today.” (ii) “Be in no doubt: the police closed down Kanaltürk and Today TV, not on the orders of the prosecutor or of a court, but on the orders of the administrator.” (iii) “Work instructions given by the person appointed to run the company should be carried out by the company ’ s employees, not by the police.” (iv) “Since the police also intervene in the internal affairs of company bosses concerning workers ’ rights, and carry out their orders, where does this method lead?” (v) “ @ cumhuriyetgzt friends, be warned ! If you don ’ t follow our management instructions we ’ ll call the police straight away!” 28 October 2015: ( i ) “The first action of the administrators of the İpek Medya group was to end the broadcasts of two television channels and the distribution of two newspapers.” (ii) “ Are there no regulations governing the powers and responsibilities of administrators appointed under Article 133 of the CCP? Can they just manage in arbitrary fashion?” (iii) “Article 133 of the CCP regulates the appointment of an administrator in the context of criminal proceedings.” (iv) “The powers and responsibilities of administrators and the way in which they must fulfil their duties are set out in the Turkish Civil Code. If you go through the Articles one by one you ’ ll understand the situation without the need for any comment.” (v) “Article 403 of the Civil Code: ‘ The administrator shall be appointed to carry out certain tasks or to manage a person ’ s property. Unless otherwise indicated the provisions of the present law on trustees shall apply to administrators ’. Article 458: ‘ The appointment of an administrator shall not exclude a person ’ s capacity to act ’ .” (vi) “ Article 460: ‘ If an administrator is placed in charge of managing and supervising property, he or she may only perform the tasks required for that purpose.” (vii) “The ability of administrators to perform other tasks depends on the special powers conferred on them by the persons whom they represent.” (viii) “Article 467: ‘ The administrator shall be liable for any damage he or she causes to the person represented as a result of a failure to properly perform his or her duties ’ ”. (ix) “ @ Medetdersim, either we didn ’ t explain ourselves properly or you insist on not understanding: we are not defending the Cemaat, we ’ re defending freedom of the press, of the law, our own freedom ...”. 5 March 2016: ( i ) “ It is illegal to hand over management of the newspaper Zaman to an administrator. We oppose the move in a determined, implacable, absolute manner ...”. (ii) “We were politically at odds with the Cemaat. They committed a great many injustices against numerous opponents by manipulating the law to suit their own political views.” (iii) “The political authorities take illegal control of a religious community ’ s newspaper and wind it up. We ’ re asked for our reaction.” (iv) “If you expect us to say ‘ Oh, they ’ re reaping what they sowed ’ or ‘ Let them destroy one another ’, you don ’ t know us.” (v) “We realise that to protect our own rights we have to protect rights and the law as regards our competitors and even our enemies. End of story.” (vi) “Even if we strongly suspect that if they [the Gülenists ] were to regain their positions of strength in the future they would again act illegally, that is no excuse for us to remain silent now.” (viii) “There ’ s no excuse for not speaking out about illegal acts. The victim ’ s history, criminal record and lack of self-criticism are secondary.” (c) The applicants Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz, Bülent Utku, Ahmet Kadri Gürsel and Turhan Günay 49. According to the bill of indictment filed by the prosecutor ’ s office, these eight applicants, on account of their positions within Cumhuriyet, were to be considered criminally responsible for the following acts, in addition to those referred to in the detention orders. ( i ) The publication of an interview with Fethullah Gülen on 23 May 2015 under the heading “The son-in-law called my humble home ( fakirhane ) a mansion ( malikhane )”. This was alleged to constitute propaganda in favour of a terrorist organisation. (ii) The use by the newspaper Cumhuriyet, on two occasions, of the same heading as the daily newspaper Zaman (regarded as having close ties to the organisation FETÖ). The first article, published on 16 February 2016 under the title “The knotty problem of Azaz ”, reported on a missile attack on civilian targets in the Syrian city of Azaz, allegedly led by Russian forces; the second article, published in February 2016 under the heading “Bomb at the heart of the State”, reported on a car-bomb attack in the centre of Ankara close to buildings belonging to the senior command of the armed forces. (iii) The participation of certain journalists working for the newspaper Cumhuriyet in the “ Abant meetings”, together with testimony to the effect that only individuals approved by Fethullah Gülen were invited to those seminars. (iv) The publication of the article by the journalist Aydin Engin on 13 July 2016, two days before the attempted coup, entitled: “Peace in the world, but what about at home?”, which referred to a committee formed by the instigators of the attempted coup known as the “Peace at Home Council”. According to some informants, the article had announced the date of the planned coup attempt. (v) The statement made by a Cumhuriyet journalist, H. Ç. , in an interview published in the daily newspaper Zaman, in which he said that he “would not describe the Gülenist community as a terrorist organisation”. (vi) The publication of the article of 12 July 2016, three days before the attempted coup, written by the applicant Ahmet Kadri Gürsel and entitled “ Erdoğan wants to be our father”, which allegedly conveyed a message designed to cause disorder in Turkey and predicted the coup attempt. (vii) The fact that the United States correspondent of the website haberdar.com had also been Cumhuriyet ’ s US correspondent for two years, and had allegedly published articles setting out some of the views of the organisation FETÖ/PDY. (viii) The fact that allegedly false and manipulative information posted on the Twitter accounts @ fuatavni and @ jeansbiri (Twitter feeds of whistleblowers critical of the government to which members of FETÖ allegedly contributed) had been reproduced in a special section of the newspaper Cumhuriyet, thus enabling the information to be circulated widely among the public. Judicial decisions on the merits of the charges against the applicants 50. The applicants submitted defence pleadings to the Istanbul Assize Court in response to the prosecution ’ s charges. The court also took witness evidence against the applicants, primarily from journalists or former journalists of Cumhuriyet, who confirmed the inferences drawn by the prosecutor ’ s office with regard to the alignment of the newspaper ’ s editorial stance with the views of members of the organisation FETÖ/PDY. 51. In a judgment of 25 April 2018 the Istanbul Assize Court found the acts of which the applicants were accused in the indictment to be established, and found them guilty of assisting a terrorist organisation without being members of it, under Article 220 § 7 of the CC. Accordingly, it sentenced the applicant Mehmet Murat Sabuncu to seven years and six months ’ imprisonment, the applicant Akın Atalay to eight years, one month and fifteen days ’ imprisonment, the applicant Bülent Utku to four years and six months ’ imprisonment, the applicant Ahmet Kadri Gürsel to two years and six months ’ imprisonment, and the applicants Güray Tekin Öz, Önder Çelik, Hacı Musa Kart, Hakan Karasinir and Mustafa Kemal Güngör to three years and nine months ’ imprisonment each. 52. The Assize Court acquitted the applicant Turhan Günay of the above-mentioned charges. 53. The Assize Court also acquitted the applicants Turhan Günay, Akın Atalay, Bülent Utku, Güray Tekin Öz, Önder Çelik, Hacı Musa Kart, Hakan Karasinir and Mustafa Kemal Güngör of the charges of misappropriation under Article 155 § 2 of the CC. 54. The applicants and the prosecutor ’ s office each appealed against the judgment of 25 April 2018. 55. In a judgment of 18 February 2019 the Istanbul Court of Appeal (Third Criminal Division) dismissed the appeals after examination on the merits. It found as follows: “... the impugned judgment did not contain any substantive or procedural irregularities. There were no deficiencies in the evidence taken or the other investigative steps carried out by the first-instance court. The impugned acts were correctly characterised in accordance with the types of offences provided for by law. The sentences were fixed in accordance with the convictions and the law. Accordingly, the grounds of appeal advanced by the prosecutor ’ s office and by the convicted persons are unfounded. ...” The appeals to the Court of CassationThe observations of the chief public prosecutor The observations of the chief public prosecutor The observations of the chief public prosecutor 56. The parties appealed on points of law. 57. On 16 July 2019 the chief public prosecutor attached to the Court of Cassation, in his submissions, sought the quashing of the judgment convicting the applicants. He relied on a series of grounds of appeal. 58. The chief public prosecutor pointed out in particular that the crime of assisting criminal organisations or armed terrorist organisations required direct intent. In that regard he observed that the finding that a criminal offence had been committed could not be grounded purely on a hypothetical aim pursued by the accused in expressing their political opinions, merely on the basis that their assessment of the situation was at variance with that of the public authorities and the majority of the public. A finding that the alleged offence had been committed had to be based first and foremost on concrete facts. The evidence adduced in support of the allegations should make it possible to establish the facts so as to demonstrate that the accused had acted with the aim of helping to achieve the illegal objectives of the terrorist organisations. In other words, articles published in newspapers or items shared on social media could not constitute the offence of assisting terrorist organisations purely because they contained remarks criticising the actions of the public authorities. 59. As to the charges against the three accused who had occupied managerial positions within Cumhuriyet, including the applicants Mehmet Murat Sabuncu and Akın Atalay, the chief public prosecutor considered that the individuals concerned could not be held responsible for the impugned articles as there was no evidence or information indicating that they had been involved in the writing of the articles. The chief public prosecutor noted, moreover, that the prosecution and the defence had agreed on this point. He stated that the individual responsibility of the authors of the articles, who had been known and identified, could be engaged, but that the criminal responsibility of the management of Cumhuriyet could not. 60. With regard to the charges relating to the applicants ’ alleged assistance to terrorist organisations, the chief public prosecutor made the following points. ( i ) The telephone conversations between the accused and persons who had subsequently been the subject of a criminal investigation for membership of FETÖ could not constitute evidence of the offence of assisting an armed terrorist organisation. (ii) The accusation that the changes to the board of management of the Cumhuriyet Foundation following discussions and elections between 2013 and 2016 had altered the editorial stance of the newspaper Cumhuriyet in order to provide assistance to terrorist organisations was not based on any factual evidence. (iii) Participation in the “ Abant meetings” could not by itself amount to evidence that the accused had committed the offence of assisting a terrorist organisation, since the memoranda submitted by the accused at those meetings had not contained any of the constituent elements of a crime. (iv) Participation in a breakfast organised by the Journalists ’ and Writers ’ Foundation, a body against which no suspicion or accusation of assisting terrorist organisations existed, and the fact of being photographed on that occasion with suspected members of FETÖ, could not by themselves constitute evidence of the offence of assisting a terrorist organisation. (v) Exchanges between third parties (suspected in other criminal proceedings of belonging to the organisation FETÖ) via the messaging application ByLock on the question of who would be invited to the Abant meetings could not be regarded as evidence of the offence of assisting a terrorist organisation, provided that they did not refer to facts concerning assistance to such an organisation. (vi) The alleged facts concerning the activities routinely organised by the members of the PKK and of FETÖ were in no way connected to the accused in the present case. (vii) Material shared on social media that did not contain any criminal element but simply constituted comments or criticism of a political nature could not be regarded as evidence of the offence of assisting armed terrorist organisations. 61. By way of conclusion, the chief public prosecutor requested the Court of Cassation to quash the judgment convicting the accused. He took the view that the applicants should be acquitted of the charges against them, given that, in view of the principles, standards and restrictions laid down by the Constitution, and the case-law of the Strasbourg Court and the Constitutional Court, the articles and other written material complained of had simply conveyed information, criticism or comments and did not warrant the application of any restriction necessary in a democratic society for the purpose of preventing disorder or crime. The Court of Cassation judgment 62. In a judgment of 12 September 2019 the Court of Cassation quashed the appeal judgment convicting the applicants, basing its decision on the grounds advanced by the chief public prosecutor. In its reasoned judgment delivered on 27 September 2019 it observed at the outset that the press and investigative journalism, by subjecting political decisions and actions, and possible negligence on the government ’ s part, to close scrutiny and facilitating participation by citizens in the decision-making process, ensured the proper functioning of democracy. The court stressed the fact that the press constituted one of the most appropriate means by which citizens could form a view on the opinions and attitudes of political leaders. 63. The Court of Cassation pointed out that activities relating to the exercise of public rights and freedoms should be presumed to be in accordance with the law and that press freedom, when exercised within the limits laid down by law, was no exception to that principle. It stressed that, according to the Press Act, the press was free and that this freedom encompassed the right to receive and disseminate information, the right to criticise, the right to interpret facts and opinions and the creation of works of all kinds. 64. The Court of Cassation also referred to the case-law of the Strasbourg Court, describing the role of the press as a “public watchdog” as vital to the functioning of a democratic society. 65. The Court of Cassation went on to point out the particular features of the offence of assisting a terrorist organisation, emphasising that persons committing that offence, in addition to a general intentional fault, namely intent to carry out acts punishable under criminal law, had to have committed a specific intentional fault consisting in pursuing a particular objective. The Court of Cassation held that, for the offence of assisting a terrorist organisation to be established, the perpetrator had to have deliberately assisted such an organisation while being aware that the latter pursued the aim of committing criminal offences. The court specified that the expression “while being aware” also required direct intent on the part of the perpetrator. Hence, in the court ’ s view, it was also necessary to ascertain whether the person concerned had acted with the intention of helping to achieve the illegal aims of the organisation in question. 66. The Court of Cassation added that if the assistance had been provided not directly to the illegal organisation itself, but to the individuals who were members of it, the person providing the assistance could not be held responsible for that criminal offence unless it was established that he or she had been aware that the individuals concerned were acting as members of an organisation created for the purpose of committing the said offences or crimes. 67. As to the issue of the establishment of the facts on the basis of the evidence for and against the accused, the Court of Cassation referred to the general criminal-law principle whereby the accused should have the benefit of the doubt. The court pointed out that, for any person to be convicted, the commission of an offence had to be proved beyond doubt. A decision to convict could not be arrived at by interpreting to the detriment of the accused facts or allegations that were doubtful or not wholly clarified. 68. The Court of Cassation therefore concluded that the lower courts had erroneously characterised the offences in issue as “assisting a terrorist organisation”. The case was sent back to the Istanbul Assize Court. Follow-up to the Court of Cassation judgment 69. In a judgment of 21 November 2019 the Istanbul 27th Assize Court acquitted the applicant Ahmet Kadri Gürsel, finding that he had not been a member of any board of management within Cumhuriyet and that his own written pieces could be characterised as criticism coming within the exercise of freedom of expression. With regard to the other applicants, the Assize Court departed from the Court of Cassation judgment of 18 September 2019 and confirmed its own judgment of 18 February 2019 convicting the applicants. It sentenced the applicant Mehmet Murat Sabuncu to seven years and six months ’ imprisonment, the applicant Akın Atalay to eight years, one month and fifteen days ’ imprisonment, the applicant Bülent Utku to four years and six months ’ imprisonment, the applicant Önder Çelik to three years and nine months ’ imprisonment, the applicant Haci Musa Kart to three years and nine months ’ imprisonment, the applicant Hakan Karasinir to three years and nine months ’ imprisonment, the applicant Mustafa Kemal Güngör to three years and nine months ’ imprisonment, and the applicant Güray Tekin Öz to three years and nine months ’ imprisonment. The case is still pending before the plenary criminal divisions of the Court of Cassation. The individual applications to the Constitutional CourtAs regards all the applicants As regards all the applicants As regards all the applicants 70. On 26 December 2016 the applicants each lodged an individual application with the Constitutional Court. They alleged a breach of their right to liberty and security and their right to freedom of expression and freedom of the press. They also maintained that they had been arrested and detained on grounds other than those provided for by the Turkish Constitution and the Convention. 71. The Constitutional Court delivered its judgments on the applicants ’ applications on 11 January 2018 (with regard to Turhan Günay ) and on 2 and 3 May 2019 (with regard to the remaining applicants). In the case of the applicants Mehmet Murat Sabuncu, Akın Atalay, Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz and Bülent Utku, it found, by a majority, that there had been no violation of the provisions of the Constitution relied on by the applicants, namely Article 19 (right to liberty and security of person) and Articles 26 and 28 (freedom of expression and freedom of the press respectively). 72. In the case of the applicants Turhan Günay and Ahmet Kadri Gürsel the Constitutional Court held, unanimously in the first case and by a majority in the second, that there had been a breach of the aforementioned provisions. As regards the applicants Önder Çelik, Mustafa Kemal Güngör, Hakan Karasinir, Hacı Musa Kart, Güray Tekin Öz and Bülent Utku 73. In a judgment of 2 May 2019 the Constitutional Court observed that in issuing the detention orders in respect of these six applicants, the authorities had found that, following their appointment to the board of management of the Cumhuriyet Foundation, the daily newspaper Cumhuriyet had criticised the actions of various State bodies and had published several articles that could be regarded as propaganda in favour of terrorist organisations, in that they had been liable to create a favourable perception of those organisations among members of the public. It also noted that the authorities that had ordered the applicants ’ detention had found that the individuals concerned, in view of the senior positions which they occupied and their length of service, had influenced the newspaper ’ s editorial policy and should be held criminally responsible for the articles published in the newspaper. On this point the Constitutional Court observed as follows: “It is beyond doubt that the board of management of the Cumhuriyet Foundation appoints the publication director of the daily newspaper and that the latter chooses the editor-in-chief and other persons. In this context, some of the applicants and [the applicant] Akın Atalay stated that the board of management could replace the publication director at any time if his performance was unsatisfactory. Likewise, the vice-president of the foundation ’ s board of management, Akın Atalay, stated that a review meeting concerning the newspaper was held every two months. In particular, in reply to a question, he stated that prior to the publication of the articles concerning the ‘ MİT lorries ’, the newspaper ’ s lawyers, including himself, had met and assessed the articles and had then published them. Some witnesses, including journalists and former editors of the newspaper, stated that the newspaper ’ s publishing policy was determined by the board of management of the Cumhuriyet Foundation, that Akın Atalay, who was the vice-president of the management board and the chairman of the executive committee, was the most senior authority in that regard, and that he had proposed to the foundation ’ s board of management that it appoint C.D. as publication director. The court notes that the investigating authorities, taking into account all these facts and the applicants ’ positions within the foundation and the media company, and their long-standing positions within the newspaper, concluded that the applicants could indeed be held responsible for the publication of the news items and articles published in the newspaper and for the direction taken by the newspaper ’ s publishing policy.” 74. The Constitutional Court considered that it had been neither arbitrary nor unfounded for the investigating authorities to consider that there was a strong indication of the applicants ’ guilt, in view of the language used in the articles and in the social media posts and of the impact that these documents had had on public opinion at the time of their publication. 75. The Constitutional Court referred in particular to the alleged acts as set out in the orders for the applicants ’ detention (see the summary of these facts at paragraph 23 above) and in the bill of indictment concerning them (see the summary of these facts at paragraph 49 above). 76. On the basis of those accusations the Constitutional Court considered that all the applicants had posed a flight risk, given the severity of the statutory penalties for their alleged offences. Like the criminal courts, it rejected the applicants ’ claim that they had been investigated and placed in pre-trial detention solely on account of acts coming within the scope of their freedom of expression and freedom of the press. 77. A minority of six judges of the Constitutional Court (six out of fifteen, including the President) expressed separate dissenting opinions. They considered that there had been no reasonable or strong suspicion capable of justifying the applicants ’ arrest and detention. In their view, the suspicions advanced by the public prosecutor ’ s office and cited by the competent authorities as grounds for the applicants ’ initial and continued detention, to the effect that the applicants, in their capacity as members of the board of management of the Cumhuriyet Foundation, had influenced the content of the articles referred to in the judgment, had not been supported by any specific evidence. The dissenting judges considered that there was likewise no indication that the applicants had acted with the intention of assisting the criminal organisations referred to in the judgment. In the judges ’ view, the prosecution of the members of the board of management on account of articles written by other journalists and published under the responsibility of the newspaper ’ s publication director had been contrary to the principle of the individual nature of criminal responsibility. Furthermore, no evidence had been adduced casting doubt on the applicants ’ defence in reply to those accusations, as it had been consistent with the normal course of life. Noting that the suspicions against the applicants had been based on newspaper articles that were covered by freedom of expression and freedom of the press, the dissenting judges considered that the authorities in question should have taken particular care in applying measures entailing a deprivation of liberty. The change in the newspaper ’ s editorial stance could not by itself constitute the subject of a criminal offence. The judges pointed out that the senior management of the newspaper could not be prosecuted unless the newspaper ’ s editorial stance systematically promoted the use of violence and terrorist methods and sought to legitimise terrorist organisations. As a general rule, accusations could not be made against journalists in a sweeping manner by listing the headings, articles and opinions published by the newspaper over a particular period. A blanket approach of this kind, omitting to specify how each article had infringed the Criminal Code, would narrow the sphere of journalistic activity and have a chilling effect on freedom of the press. The dissenting judges considered that even if some articles apt to support the activities of a terrorist organisation were published from time to time in a newspaper, they could merely engage the criminal responsibility of their authors but did not suffice to demonstrate a shift in the editorial stance of the newspaper as a whole. 78. The dissenting judges pointed out that the Constitutional Court had set aside the provisions of the Prevention of Terrorism Act providing for the proprietors of newspapers to be held responsible for articles published in their newspapers, basing its ruling on the individual nature of criminal responsibility. In their view, the criminal investigation authorities had in no way demonstrated in the present case how the responsibility of the applicants, whose situation could be likened to that of the proprietors of a newspaper, could have been engaged. 79. The judges also pointed to the case-law of the Constitutional Court according to which the requirement of strong suspicion, which under Article 19 of the Constitution was a prerequisite for detention, continued to apply even during the state of emergency. 80. Moreover, a newspaper ’ s editorial stance was protected by freedom of expression and freedom of the press. These freedoms, which enabled the public to be informed of different versions of events and to read critical opinions on current affairs and governance issues, had a vital role to play in the functioning of a democratic, pluralist regime. The freedoms in question also applied to minority views within society. According to the dissenting judges, while some published items or editorial stances might present certain similarities with the supposed objectives of terrorist organisations, such similarities could not in themselves be regarded as assistance to a terrorist organisation. As regards the applicant Mehmet Murat Sabuncu 81. In its judgment of 2 May 2019 the Constitutional Court observed that the applicant Mehmet Murat Sabuncu had been appointed as editor ‑ in ‑ chief of the newspaper Cumhuriyet on 1 September 2016, in other words, after the attempted coup; that he had subsequently been accused of being responsible for the articles published in the newspaper; and that he had also been accused of opposing the operations conducted by the security forces against the media outlets controlled by the organisation FETÖ/PDY, of having given the impression, via material posted on social media, that the members of that organisation were victims, of allowing the newspaper Cumhuriyet to disseminate propaganda in favour of the PKK by conveying the messages of that organisation, and of thereby aiding these two terrorist organisations. In that connection the Constitutional Court found as follows: “53. It was noted in the detention order that the media company ( Yenigün ) was the company responsible for publishing the daily newspaper and that the (Cumhuriyet) Foundation, which held the trademark and publishing rights in relation to the newspaper, ranked above the newspaper and the media company in the institutional hierarchy, with the result that an organic link existed between the foundation, the media company and the newspaper; that following the election ... to the foundation ’ s board of management of individuals with links to FETÖ/PDY, the newspaper had altered its statist, secular and nationalist stance and begun targeting the State; that a large number of headings, news items and articles liable to create a favourable impression of the organisations FETÖ/PDY and the PKK had been published in the newspaper; and that the newspaper had obscured (manipulated) the facts to the benefit of the terrorist organisations, thus attempting to render the country ungovernable. It was found that the applicant was also responsible for these materials in his capacity as publication director and that there was a strong suspicion that he was guilty. In the above-mentioned order, items published by the newspaper after 2013 were referred to in support of the charges. The indictment mentioned the changes to the foundation ’ s board of management in 2013 and subsequently, and the news items and articles published in the newspaper during the same period and to which the charges related. 54. Accordingly, the applicant was not charged for having written a news item or an article published in the newspaper. It was found that the charge against the applicant in account of the news items and articles published in the newspaper was based on the fact that he had been responsible for the headings, news items and articles published in the newspaper because he was its publication director. It was also alleged that the applicant had opposed the operations carried out by the judicial authorities against FETÖ/PDY ’ s media outlets and had attempted, through his social media posts, to portray the members of FETÖ/PDY as victims and had also, through his social media posts, supported the publication of PKK propaganda, thereby assisting the above-mentioned terrorist organisations. 55. It was further alleged in the indictment that the applicant had been in telephone contact with persons who were under investigation for offences linked to FETÖ/PDY or who were users of ByLock. The above-mentioned aspects were not the subject of a separate charge but were mentioned in connection with the main charge against the applicant, referred to above.” 82. The Constitutional Court referred to the newspaper articles mentioned by the judicial authorities in ordering the detention of Mehmet Murat Sabuncu (see paragraph 25 with reference to paragraph 23 above) and, in particular (citing them specifically), those mentioned in the bill of indictment of 3 April 2017 (see paragraphs 45-47 above). The court concluded that it could not be said that there had been no reasonable suspicion that the applicant had committed a criminal offence necessitating his placement in pre-trial detention. It considered, on the basis of those accusations, that the applicant had posed a flight risk at the time of the events, given the severity of the statutory penalty for the offences in question. Like the criminal courts, it also rejected the applicant ’ s argument that the investigation concerning him and his pre-trial detention had been designed to punish acts that were covered by freedom of expression and freedom of the press. 83. The Constitutional Court held, by a majority, that the orders for Mehmet Murat Sabuncu ’ s initial and continued detention had been well founded and had not been arbitrary. 84. A minority of the members of the Constitutional Court (six judges out of fifteen, including the President) expressed separate dissenting opinions in the case of Mehmet Murat Sabuncu. They pointed to their opinions concerning freedom of expression set out in the case of Önder Çelik and Others, to the effect that a newspaper ’ s editorial stance was protected by freedom of expression and freedom of the press. These freedoms, which enabled the public to be informed of different versions of events and to read critical opinions on current affairs and governance issues, had a vital role to play in the functioning of a democratic, pluralist regime and also applied to minority views within society. According to the dissenting judges, while some published items or editorial stances might present certain similarities with the supposed objectives of terrorist organisations, such similarities could not in themselves be regarded as assistance to a terrorist organisation. 85. As to the existence of suspicions that the offence of assisting terrorist organisations had been committed, the dissenting judges stressed that none of the articles referred to by the prosecution had actually been written by the applicant Mehmet Murat Sabuncu himself. The prosecution had not even attempted to demonstrate how the individual articles referred to had infringed the Criminal Code, but had simply listed the articles one by one before alleging that the newspaper ’ s editorial stance had changed, becoming aligned with the stated aims of the terrorist organisations in question. In the judges ’ view, freedom of expression, and especially freedom of the press, protected the dissemination to the public of all dissenting views and the public ’ s right to be informed of them. 86. Some of the dissenting judges also observed that the impugned articles referred to in the detention orders had not been published during the period when Mehmet Murat Sabuncu was the publication director, but had in fact been published prior to September 2016, when he had been appointed to that position. In the view of other judges, the remarks shared by Mehmet Murat Sabuncu on social media, criticising the proceedings brought against the media outlets accused of having close ties to the organisation FETÖ and expressing concern at the likelihood of civilians close to the government being armed, were protected by freedom of expression. As regards the applicant Akın Atalay 87. With regard to the responsibility of the applicant Akın Atalay on account of news items and articles published in the newspaper Cumhuriyet and referred to by the magistrate and the prosecuting authorities in the present case, the Constitutional Court made findings similar to those made in relation to the other applicants. It held as follows: “... 52. It was noted in the detention order that the media company ( Yenigün ) was the company responsible for publishing the daily newspaper, that the (Cumhuriyet) Foundation, which held the trademark and publishing rights in relation to the newspaper, ranked above the newspaper and the media company in the institutional hierarchy, with the result that an organic link existed between the foundation, the media company and the newspaper; that following the election ... to the board of management of the foundation of individuals with links to FETÖ/PDY, the newspaper had altered its statist, secular and nationalist stance and begun targeting the State; that a large number of headings, news items and articles liable to create a favourable impression of the organisations FETÖ/PDY and the PKK had been published in the newspaper; and that the newspaper had obscured (manipulated) the facts to the benefit of the terrorist organisations, thus attempting to render the country ungovernable. It was found that the members of the foundation ’ s board of management, including the applicant, were responsible for these materials and that there was a strong suspicion that they were guilty. In the above-mentioned order, items published by the newspaper after 2013 were referred to in support of the charges. The indictment mentioned the changes to the foundation ’ s board of management in 2013 and subsequently, and news items and articles published in the newspaper during the same period and to which the charges related. 53. Accordingly, the applicant was not charged for having written a news item or an article published in the newspaper. It was found that the charge against the applicant on account of the news items and articles published in the newspaper was based on the fact that he had been a member of the board of management of the foundation and the board of the media company, that he had been chairman of the executive committee (of the foundation ’ s board of management) and that he had thus had an active role in the newspaper. It was also alleged that the applicant had opposed the operations carried out by the judicial authorities against FETÖ/PDY ’ s media outlets and had attempted, through his social media posts, to portray the members of FETÖ/PDY as victims, thereby assisting that terrorist organisation. 54. It was further alleged in the indictment that financial transactions had taken place between, on the one hand, persons and companies with links to FETÖ/PDY and, on the other hand, the newspaper and the media company, connected to the foundation on whose board of management the applicant sat as vice-president, and that the applicant had been in telephone contact with persons under investigation for offences linked to FETÖ/PDY or who were users of ByLock. The above-mentioned aspects were not the subject of a separate charge but were mentioned in connection with the main charge against the applicant, referred to above.” 88. The Constitutional Court, after reiterating the allegations made by the authorities against Akın Atalay in the orders for his initial and continued pre-trial detention (see paragraph 26 with reference to paragraph 23 above), and by the prosecutor ’ s office in the indictment of 3 April 2017 (see paragraph 48 above), went on to find that it could not be said that there had been no reasonable suspicion that the applicant had assisted the terrorist organisation in question by opposing the operations conducted against the media outlets controlled by the organisation FETÖ/PDY and by attempting to cast doubt on the legitimacy of those operations via the items he had posted on social media, which had given the impression that the members of that terrorist organisation were in fact victims. 89. Lastly, the Constitutional Court found that it had been neither arbitrary nor unfounded for the criminal investigation authorities to consider that there was a strong indication of the applicant ’ s guilt, in view of the language used in the articles published in Cumhuriyet and in the items posted on social media, and of the impact that these had had on public opinion at the time of their publication. 90. In the light of these considerations regarding the complaints concerning the right to liberty and security, the Constitutional Court dismissed Akın Atalay ’ s remaining complaints, including those relating to freedom of expression and freedom of the press. 91. A minority of the judges of the Constitutional Court (six judges out of fifteen) expressed separate dissenting opinions in Akın Atalay ’ s case. In their view, the observations they had made in the case of Önder Çelik and Others concerning the prosecution and detention of the senior managers of the Cumhuriyet Foundation for their alleged influence over the editorial stance of the newspaper Cumhuriyet applied equally to the case of Akın Atalay. According to the dissenting judges, Akın Atalay had also been prosecuted not because of any articles that he himself had written, but first and foremost because he had allegedly influenced articles written by other Cumhuriyet journalists, on account of his managerial positions within the Cumhuriyet Foundation and the publishing company Yenigün. In the judges ’ view, it was not possible to arrive at the conclusion that suspicions had existed simply by listing the allegations against the applicant; each of the items of evidence should have been examined in turn on the basis of the facts and the documents in the case file. Neither the prosecuting authorities nor the majority of the Constitutional Court had conducted such an examination. 92. The dissenting judges also observed that in the few items he had shared on social media, the applicant had not just expressed the view that the measures taken against the organisations deemed to be close to FETÖ/PDY had been in breach of the law; he had also referred to that organisation ’ s past illegal activities and had criticised the government, and even the Constitutional Court, for not preventing those activities. The judges concluded that the investigating authorities had failed to give any reasons for their finding that the sharing of these items on social media was not protected by freedom of expression. As regards the applicants Turhan Günay and Ahmet Kadri Gürsel 93. In its judgment of 11 January 2018 concerning the applicant Turhan Günay, the Constitutional Court found a violation of the applicant ’ s right to liberty, taking the view that there had been no strong suspicions that he had committed the alleged criminal offences capable of justifying his pre-trial detention. It noted in that connection that the applicant had not been charged on account of an article that he himself had written, but that the allegations had been based on his membership of the board of management of the foundation, which allegedly rendered him responsible, together with his fellow board members, for the change in editorial stance and the manipulative articles published in the newspaper championing the cause of terrorist organisations. However, the court noted that the applicant had ceased to be a member of the newspaper ’ s senior management in 2013 and that his name did not feature among the members of the board of management, and that the alleged acts had taken place after 2013. It therefore considered it unnecessary to examine the complaints of a breach of freedom of expression, since no facts had been disclosed concerning possible influence by the applicant over the material published in the newspaper. The Constitutional Court also made an award to the applicant for costs and expenses. Since the applicant had not claimed any compensation, submitting that the finding of a violation would constitute redress for the alleged damage, and since he had already been released pending trial, the Constitutional Court ruled that there was no need to take any additional action in his case. 94. In its judgment of 2 May 2019 concerning the applicant Ahmet Kadri Gürsel, the Constitutional Court considered that there had been no strong suspicions that the applicant had committed the alleged criminal offences. It noted in that regard that although the investigating authorities had argued that the applicant, in his capacity as editorial adviser, had been responsible for the news items and articles published in the newspaper Cumhuriyet, those authorities had not specified how his role – which had been confined to giving editorial advice – had had an impact on the newspaper ’ s editorial policy. The court found that, while the style of the article written by the applicant had been harshly critical, his remarks had not expressly incited others to commit violence or terrorist acts. The Constitutional Court further considered that the fact that the applicant had met with persons who had been investigated in connection with an offence linked to a terrorist organisation could not in itself constitute a ground for bringing charges. In that connection it pointed out that it would have had to be proven that the meetings had taken place in the context of an organisational activity. In the instant case it noted that the investigating authorities had not indicated for what purpose the applicant had met with the persons concerned. The Constitutional Court concluded by finding a violation of the right to liberty and the right to freedom of expression. It also made an award to the applicant for costs and expenses. Since the applicant had not claimed any compensation, submitting that the finding of a violation would constitute redress for the alleged damage, and since he had already been released pending trial, the Constitutional Court ruled that there was no need to take any additional action in his case. RELEVANT DOMESTIC LAW AND PRACTICERelevant provisions of the Constitution Relevant provisions of the Constitution Relevant provisions of the Constitution 95. The relevant parts of Article 19 of the Constitution read as follows: “Everyone has the right to personal liberty and security. ... Individuals against whom there are strong presumptions of guilt may be detained only by order of a judge and for the purposes of preventing their absconding or the destruction or alteration of evidence, or in any other circumstances provided for by law that also necessitate their detention. No one shall be arrested without an order by a judge except when caught in flagrante delicto or where a delay would have a harmful effect; the conditions for such action shall be determined by law. ... A person who has been arrested or detained shall be brought before a judge within forty-eight hours at the latest or, in the case of offences committed jointly with others, within four days, not including the time required to convey the person to the court nearest to the place of detention. No one shall be deprived of his or her liberty after the expiry of the aforementioned periods except by order of a judge. These periods may be extended during a state of emergency or a state of siege or in time of war. ... Anyone who has been detained shall be entitled to request a trial within a reasonable time and to apply for release during the course of the investigation or criminal proceedings. Release may be conditioned by a guarantee to ensure the person ’ s appearance throughout the trial, or the execution of the court sentence. Everyone who is deprived of his or her liberty for any reason whatsoever shall be entitled to apply to a competent judicial authority for a speedy decision on his or her case and for his or her immediate release if the detention is not lawful. ...” Relevant provisions of the Criminal Code 96. The relevant parts of Article 220 of the Criminal Code (“the CC”), which concerns the offence of forming an organisation with the aim of committing a criminal offence, provide as follows: “... (6) Anyone who commits an offence on behalf of an [illegal] organisation shall also be sentenced for belonging to that organisation, even if he or she is not a member of it. The sentence to be imposed for membership may be reduced by up to half. This paragraph shall apply only to armed organisations. (7) Anyone who assists an [illegal] organisation knowingly and intentionally ( bilerek ve isteyerek ), even if he or she does not belong to the hierarchical structure of the organisation, shall be sentenced for membership of that organisation. The sentence to be imposed for membership may be reduced by up to two-thirds, depending on the nature of the assistance. (8) Anyone who disseminates propaganda in favour of the organisation [formed with the aim of committing offences] by legitimising or condoning methods such as force, violence or threats shall be liable to a term of imprisonment of one to three years.” 97. Article 314 of the CC, which concerns the crime of belonging to an armed organisation, provides as follows: “1. Anyone who forms or leads an organisation with the aim of committing the offences listed in the fourth and fifth parts of this chapter [crimes against the State and the constitutional order] shall be sentenced to ten to fifteen years ’ imprisonment. 2. Any member of an organisation referred to in the first paragraph above shall be sentenced to five to ten years ’ imprisonment. 3. The provisions relating to the offence of forming an organisation with the aim of committing criminal offences shall apply in their entirety to this offence.” Relevant provisions of the Code of Criminal Procedure 98. Pre-trial detention is governed by Articles 100 et seq. of the Code of Criminal Procedure (“the CCP”). In accordance with Article 100, a person may be placed in pre-trial detention where there is factual evidence giving rise to strong suspicion that the person has committed an offence and where the detention is justified on one of the grounds laid down in the Article in question, namely: if the suspect has absconded or there is a risk that he or she will do so, and if there is a risk that the suspect will conceal or tamper with evidence or influence witnesses. For certain offences, in particular offences against State security and the constitutional order, the existence of strong suspicion is sufficient to justify pre-trial detention. 99. Article 101 of the CCP provides that pre-trial detention is ordered at the investigation stage by a magistrate at the request of the public prosecutor and at the trial stage by the competent court, whether of its own motion or at the prosecutor ’ s request. An objection may be lodged with another magistrate or another court against decisions ordering or extending pre-trial detention. Such decisions must include legal and factual reasons. 100. Pursuant to Article 108 of the CCP, during the investigation stage, a magistrate must review a suspect ’ s pre-trial detention at regular intervals not exceeding thirty days. Within the same period, the detainee may also lodge an application for release. During the trial stage, the question of the accused ’ s detention is reviewed by the competent court at the end of each hearing, and in any event at intervals of no more than thirty days. 101. Article 141 § 1 (a) and (d) of the CCP provides: “Compensation for damage ... may be claimed from the State by anyone ...: (a) who has been arrested or taken into or kept in detention under conditions or in circumstances not complying with the law; ... (d) who, even if he or she was detained lawfully during the investigation or trial, has not been brought before a judicial authority within a reasonable time and has not obtained a judgment on the merits within a reasonable time; ...” 102. Article 142 § 1 of the same Code reads as follows: “The claim for compensation may be lodged within three months after the person concerned has been informed that the decision or judgment has become final, and in any event within one year after the decision or judgment has become final.” 103. According to the case-law of the Court of Cassation, it is not necessary to wait for a final decision on the merits of the case before ruling on a compensation claim lodged under Article 141 of the CCP on account of the excessive length of pre-trial detention (decisions of 16 June 2015, E. 2014/21585 – K. 2015/10868 and E. 2014/6167 – K. 2015/10867). The case-law of the Constitutional Court 104. In its decision of 4 August 2016 (no. 2016/12) concerning the dismissal of two members of the Constitutional Court and its decision of 20 June 2017 ( Aydın Yavuz and Others, no. 2016/22169) concerning a person ’ s pre-trial detention, the Constitutional Court provided information and assessments on the attempted military coup and its consequences. It carried out a detailed examination, from a constitutional perspective, of the facts leading to the declaration of the state of emergency. As a result of this examination, it found that the attempted military coup of 15 July 2016 had been a clear and serious attack both on the constitutional principles that sovereignty was unconditionally and unreservedly vested in the people, who exercised it through authorised organs, and that no individual or body could exercise any State authority not emanating from the Constitution, and also on the principles of democracy, the rule of law and human rights. According to the Constitutional Court, the attempted military coup had been a practical illustration of the severity of the threats posed to the democratic constitutional order and human rights. After summarising the attacks carried out during the night of 15 to 16 July 2016, it emphasised that in order to assess the severity of the threat posed by a military coup, it was also necessary to consider the risks that might have arisen had the coup attempt not been thwarted. It found that the fact that the attempted coup had taken place at a time when Turkey had been under violent attack from numerous terrorist organisations had made the country even more vulnerable and considerably increased the severity of the threat to the life and existence of the nation. The Constitutional Court noted that in some cases, it might not be possible for a State to eliminate threats to its democratic constitutional order, fundamental rights and national security through ordinary administrative procedures. It might therefore be necessary to impose extraordinary administrative procedures, such as a state of emergency, until such threats were eliminated. Bearing in mind the threats resulting from the attempted military coup of 15 July 2016, the Constitutional Court accepted the power of the Council of Ministers, chaired by the President, to issue legislative decrees on matters necessitating the state of emergency. In that context, it also emphasised that the state of emergency was a temporary legal regime, in which any interference with fundamental rights had to be foreseeable and the aim of which was to restore the normal regime in order to safeguard fundamental rights. Council of Europe materials On 15 February 2017 the Commissioner for Human Rights published a memorandum on freedom of expression and media freedom in Turkey. The parts of this memorandum directly related to the present case are found at paragraphs 79 ‑ 89 under the heading “Detentions on remand causing a chilling effect”. Furthermore, the relevant Council of Europe and international texts on the protection and role of human-rights defenders, including journalists, are set out in the Aliyev v. Azerbaijan judgment (nos. 68762/14 and 71200/14, §§ 88 ‑ 92, 20 September 2018) and in the Kavala v. Turkey judgment (no. 28749/18, §§ 74-75, 10 December 2019). NOTICE OF DEROGATION BY TURKEY 105. On 21 July 2016 the Permanent Representative of Turkey to the Council of Europe sent the Secretary General of the Council of Europe the following notice of derogation: “I communicate the following notice of the Government of the Republic of Turkey. On 15 July 2016, a large-scale coup attempt was staged in the Republic of Turkey to overthrow the democratically-elected government and the constitutional order. This despicable attempt was foiled by the Turkish state and people acting in unity and solidarity. The coup attempt and its aftermath together with other terrorist acts have posed severe dangers to public security and order, amounting to a threat to the life of the nation in the meaning of Article 15 of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Republic of Turkey is taking the required measures as prescribed by law, in line with the national legislation and its international obligations. In this context, on 20 July 2016, the Government of the Republic of Turkey declared a State of Emergency for a duration of three months, in accordance with the Constitution (Article 120) and the Law No. 2935 on State of Emergency (Article 3/1b). ... The decision was published in the Official Gazette and approved by the Turkish Grand National Assembly on 21 July 2016. Thus, the State of Emergency takes effect as from this date. In this process, measures taken may involve derogation from the obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms, permissible in Article 15 of the Convention. I would therefore underline that this letter constitutes information for the purposes of Article 15 of the Convention. The Government of the Republic of Turkey shall keep you, Secretary General, fully informed of the measures taken to this effect. The Government shall inform you when the measures have ceased to operate. ...” | This case concerned the applicants’ initial and continued pre-trial detention of the applicants – who, at the time of the events, were journalists with the daily newspaper Cumhuriyet or managers of the Cumhuriyet Foundation (the principal shareholder of the company that publishes the newspaper) – on account of the editorial stance taken by the daily newspaper in its articles and in posts on social media, criticising certain government policies. The applicants alleged a breach of their freedom of expression, complaining in particular of the fact that the editorial stance of a newspaper criticising certain government policies had been considered as evidence in support of charges of assisting terrorist organisations or disseminating propaganda in favour of those organisations. |
477 | Right to interpretation and translation in criminal proceedings | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in Lithuania in 1980 and lives in Ljubljana, Slovenia. 7. The applicant left Lithuania for Slovenia on 2 March 2002. 8. On 13 March 2002 at 10.43 a.m. the applicant was arrested on suspicion of being involved in a robbery at the Radovljica branch of Gorenjska Bank. 9. The robbery had taken place at 9.30 a.m. on the same day. It had involved four men, while three others had assisted in its organisation. The four robbers wore masks. One of them carried a handgun and waited at the entrance, holding three clients at gunpoint. The others jumped over the counter and overpowered two bank employees while one of the robbers emptied the tills. After taking the money, the robbers fled by car towards the railway station. Informed of the bank robbery, the police searched the area. They discovered an abandoned car in nearby woods and soon after saw four men, including the applicant, running away. One of the men, later recognised as A.V., was seen carrying a bag, which he dropped when the police officers approached. The bag was found to contain some of the money stolen from the bank, a handgun and two masks. One of the masks had biological traces belonging to the applicant and another man (E.B.). 10. All four men were arrested and were later identified as the applicant, A.V., M.K. and E.B. They were all Lithuanian nationals. 11. At 2 p.m. on the same day, 13 March 2002, the applicant was taken into police custody. It appears from the decision authorising that measure that the applicant, at the time “an unidentified person”, was immediately informed, in Russian, of the reasons for his arrest, and his right to remain silent, to request a lawyer and to have family members informed of his arrest. It can also be seen from this decision that a registered interpreter, A.G., interpreted for him from and into Russian and that the applicant did not request a lawyer. The decision was notified to the applicant at 5.20 p.m. He refused to sign a document acknowledging receipt of that decision, without providing any reasons for his refusal. 12. On the same day three other Lithuanian nationals, L.K., N.U. and G.V., were arrested on suspicion of aiding and abetting the robbery. 13. On 15 March 2002 the applicant and six other suspects were questioned by the investigating judge of Kranj District Court. The judge informed the applicant of the charges against him, his right not to incriminate himself and his right to remain silent, and also his right to be assisted by a lawyer of his own choosing. As the applicant did not appoint a lawyer, the court assigned D.V. as counsel. During the proceedings, interpreting into Russian and from Russian into Slovenian was provided by A.G. According to the record of the questioning, when asked whether he understood his rights and agreed to the appointment of counsel, the applicant started to cry. The excerpt containing the applicant ’ s statement reads as follows: “I say that I have a young child. This child will have nothing to eat because our situation is very difficult. I have always worked; I have never done anything like this. I came to Slovenia because I wanted a job. I want to see my child. When asked when I came to Slovenia, I say that I do not remember. When asked if he can describe the robbery, the accused is silent and does not answer. When asked whether I am ready to give my personal data, I state that I was born in Lithuania and that my name is Danas. I say that I will not provide my family name because I am ashamed. When asked, why I am ashamed, I say that I am scared. I am scared that I will never see my child again. What have I done? When asked what he has done to make him scared he will not to see his child again, the accused does not answer, instead he starts crying more. When asked by the public prosecutor whether I would answer any more questions, I say no. When asked whether I would answer questions from my counsel, I nod and say yes. When asked how old I am and whether I have children, I answer that I am 21 and have one child, who means the whole world to me. When asked what circumstances I live in, I say that it is very difficult in Lithuania. The circumstances are difficult. I have no job and no money. When asked how long I have been in Slovenia, I say that I do not know exactly. I think that it has been about a week and a half. When asked who he arrived in Slovenia with, the accused responds by crying. There are no other questions for the accused. When asked whether anyone should be informed about the detention, I say that I do not have any relatives, and I do not know where my wife and child are currently. The defence is hereby concluded.” 14. Another suspect, A.V., described the robbery and the events leading up to it when questioned by the investigating judge. He explained that he and the applicant had travelled to Slovenia together. They had met L.K., who had approached them in a fast-food restaurant when he had heard them speaking Russian. They had gone with him to Bled and met M.K., E.B., N.U. and G.V. a few days before the robbery. After running out of money, they had decided to rob the bank in question. 15. During the questioning of the applicant by the investigating judge, the applicant ’ s counsel set out reasons for opposing the continuation of the applicant ’ s detention. The applicant stated on record that he agreed with what had been said by his counsel. 16. Following the questioning, the investigating judge ordered the detention of all seven suspects. The decision was translated into Russian and notified to the applicant on 18 March 2002. His counsel appealed against that decision, and also against the subsequent prolongations of the applicant ’ s detention, but was unsuccessful. 17. On the day of the above-mentioned questioning, 15 March 2002, the investigating judge gave permission for the interpreter A.G. to visit the applicant and some of his co-accused in order to assist them in their consultations with their counsel. 18. A decision opening a judicial investigation against the seven suspects was issued on 26 March 2002 but was quashed on appeal by a panel of three judges. The judges found that although the details of the allegations against the suspects had been provided in the detention orders, they should also have been fully included in the decision to open an investigation. 19. The questioning of witnesses took place on 2, 3 and 4 April 2002. The applicant and the other six suspects were informed in Russian about their right to attend the questioning. The applicant did not attend those sessions, but his counsel attended them all. The transcripts of the witness statements were translated into Russian and given to the applicant on 19 April 2002. 20. On 8 April 2002 a new decision opening a judicial investigation against the seven accused was issued. It was later challenged unsuccessfully on appeal. The decision was translated into Russian and notified to the applicant on 10 April 2002. On the same day a remand hearing was held at which the applicant, with the assistance of the interpreter A.G., stated that he could not leave the country as he had no passport, that he wanted to wait until the proceedings were over and that he agreed with what had been said by his counsel at the hearing. 21. On 11 April 2002 A.G. informed the Kranj District Court that all the defendants had requested that the transcripts of the witness statements be translated into Russian. 22. On 12 April 2002 the investigating judge decided that the statements given by the suspects to the police should be excluded from the case file as the court could not rely on them. The decision was translated into Russian and notified to the applicant on 16 April 2002. 23. On 17 April 2002 an identification parade was organised and one witness identified the applicant as a person who had visited the bank two days before the robbery. 24. On 28 May 2002 the district prosecutor lodged an indictment, charging the applicant, A.V., M.K. and E.B. with robbery, one count of theft of a motor vehicle and two counts of attempted theft of a motor vehicle. L.K., N.U. and G.V. were charged with aiding and abetting the robbery. The indictment was translated into Russian and challenged unsuccessfully by the applicant ’ s counsel. 25. On 10 and 11 July 2002 the Kranj District Court held a hearing at which two Russian interpreters were present. The record of the hearing shows that the charges were read out to the defendants, who were also notified of their right not to incriminate themselves and their right to remain silent. The transcript reads as follows: “we, the defendants, state that we understand the content of the charges. ... we, the defendants, understand the notification of our rights.” 26. At the hearing A.V. changed his statement and claimed that a man had offered to find work for him and the applicant. Once they had given him their passports, he had demanded that they take part in the robbery. The applicant had, according to A.V. ’ s latest account, been too scared to participate, so they had left him in the woods to wait for them. The applicant gave a similar account of events, claiming that he had not been among those who had robbed the bank but had waited for their return in the woods. According to the record of the hearing, the applicant answered questions from the district prosecutor, the presiding judge, his own counsel and counsel for one of his co-defendants. 27. In addition to questioning the defendants, the court also examined a number of witnesses. It can be seen from the record of the hearing that the applicant had trouble with the interpreting of one of the witness statements and could only understand it when he read it. He put questions to the witnesses and commented on witness statements about the height of the robbers, and on police officers ’ statements concerning mobile telephones they had seized and the number of people who had fled the scene of the robbery. He also referred to the indictment and commented on allegations about the whereabouts of the stolen money. 28. On 12 July 2002 the applicant ’ s partner was given permission to visit him in Ljubljana Prison. 29. On 16 July 2002 a hearing was held at which the defendants gave closing statements. The transcript includes the following record of the applicant ’ s statement: “I agree with what has been said by my defence counsel. There is no evidence that I robbed the bank. The only evidence against me is the hair found in the cap, but I have already explained about the hair in the cap and why that cap happened to be on my head. Two men cannot be in a bank wearing the same cap. A person cannot be forced into something like that; nobody forced me. I was not in the bank. ... I am sad that you consider me to be an offender; you can only sentence me for what I actually did and not for what I did not do. I ask that account be taken of my family situation and that I be sentenced accordingly, but not to imprisonment.” 30. On 16 July 2002 a five-member bench of the Kranj District Court convicted the applicant, A.V., M.K. and E.B. of robbery and acquisition of unlawfully gained property (a stolen car). The applicant and M.K. were sentenced to eight years and four months in prison, E.B. received a sentence of eight years and seven months, while A.V. was sentenced to five years and four months in prison. L.K., N.U. and G.V. were found guilty of aiding and abetting the robbery and sentenced to five years ’ imprisonment. 31. The judgment contains about twenty pages of reasoning in which the court also responded to arguments relating to the use of Slovenian or Croatian during the robbery. The court noted that not many words had been spoken during the robbery, that all four defendants charged with robbery spoke Russian and were for that reason assisted by Russian interpreters, that they also knew some words in Slovenian as demonstrated during the hearing and that they could have intentionally used words resembling Slovenian. 32. On the same day, the applicant ’ s detention was extended. The written decision with a Russian translation were notified to the applicant on the following day. 33. On 2 August 2002 the judgment with a translation into Russian were also notified to the applicant. 34. On 6 August 2002 the applicant ’ s counsel appealed against the District Court ’ s judgment. He complained about alleged shortcomings in the police investigation, the assessment of evidence and his client ’ s sentence, but did not raise any complaint regarding the applicant ’ s understanding of the Russian interpreting provided to him. 35. On the same day the applicant also lodged an appeal, which was composed of five pages of argument written by hand in Slovenian with the assistance of fellow inmates. The applicant complained about the first-instance court ’ s assessment of the evidence and about his sentence. He maintained that he had known about the robbery but had not taken part in it. 36. On 14 November 2002 the Ljubljana Higher Court dismissed the applicant ’ s appeal. It found that A.V. had given a detailed and incriminating description, while having legal assistance, that the applicant had been assisted by counsel who had been appointed for him and by an interpreter at his first appearance before the investigating judge, and that there was no indication that the applicant had not been informed when arrested of the reasons for his arrest in a language he had understood. The court was of the view that if the applicant had not understood the reasons for his arrest he would have mentioned it during his questioning by the investigating judge. The applicant was issued with a Russian translation of the judgment, by which his conviction acquired the force of res judicata. 37. On 23 February 2003 the applicant sent an application entitled “an appeal to the Supreme Court” to the Kranj District Court. The application was written in Lithuanian, with the exception of an introductory explanation in Slovenian, in which the applicant informed the court that he spoke neither Russian nor Slovenian, adding that he understood a little Russian but could not write in it. In the rest of the document the applicant complained about the assessment of the evidence by the lower courts and alleged that his right to use his own language in the criminal trial had been violated. He also alleged that during his first questioning he had not been represented by counsel or provided with an interpreter. Thus, he had not understood the reasons for his arrest. He also submitted that he had stated at the hearing that he did not understand Russian very well. Despite those issues, the Kranj District Court had not provided him with a Lithuanian interpreter. 38. On 24 March 2003 the Kranj District Court instructed the applicant to submit his appeal, which it treated as an application for the protection of legality (an extraordinary remedy by which to challenge the legality of final decisions ), in Russian, finding that he had used that language throughout the criminal proceedings and in communication with his counsel. It appears from the Constitutional Court ’ s decision of 24 March 2005 (see paragraph 41 below) that the Kranj District Court had ordered that the appeal be drafted in Russian after ascertaining that there were no Lithuanian interpreters registered in Slovenia and that translation from that language would therefore have required the assistance of the nearest Lithuanian Embassy. The letter instructing the applicant to submit his application in Russian, and a Russian translation of that letter, were notified to the applicant on 4 April 2003. As the applicant did not reply, on 29 April 2003 the District Court rejected his application as incomprehensible. The decision and a Russian translation were notified to the applicant on 21 May 2003. 39. On 20 August 2004 the applicant lodged a constitutional complaint against that decision, alleging that the Kranj District Court had violated his defence rights and his right to use his own language and script. He explained that he could not speak or understand Russian very well, and in particular was not able to read decisions and other documents in Russian owing to the different characters, and that he had thus been prevented from effectively defending himself. His constitutional complaint and additional submissions were handwritten in Slovenian. In the proceedings before the Constitutional Court, the Kranj District Court replied to the applicant ’ s allegations, submitting that he had at no time stated that he had trouble understanding Russian. 40. On 30 November 2004 the applicant sent a letter to the Ministry of Justice, written in Slovenian, asking for an explanation as to why he had not had a Lithuanian interpreter at his trial. The letter was forwarded to the Kranj District Court. It replied on 28 December 2004, explaining that the applicant had used Russian to communicate with the court and with his counsel at all stages of the first-instance proceedings. 41. On 24 March 2005 the Constitutional Court delivered its decision. It observed that the applicant ’ s situation was an exceptional one, in that he was not required to properly exhaust remedies in respect of the Kranj District Court ’ s decision. In its view, the applicant, who was detained at the time, could not have been expected to challenge the impugned decision by means of a standard appeal as he had stated that he could not understand the language in which the decision had been written. The Constitutional Court went on to examine the complaint on the merits, finding in favour of the applicant. It noted that the law afforded special protection to a defendant ’ s right to use his or her own language and script after detention. The person ’ s own language would in principle be his or her mother tongue but, if the person had a command of another language, the use of the latter could suffice for oral communication in the proceedings. However, the Constitutional Court rejected the District Court ’ s view that a defendant who was in custody and who had used a certain language in oral proceedings should also submit written submissions in that language, finding that written communication required a higher level of language proficiency. The Constitutional Court noted that the applicant had been assisted by a Russian interpreter in the first-instance proceedings, which had mainly involved oral communication. After an appeal, proceedings were typically in writing and the accused no longer benefited from the assistance of court-appointed counsel. The Constitutional Court therefore found that the applicant, who had explained in his submissions to the Supreme Court that he could not write in Russian, should be allowed to submit them in his own language. It therefore concluded that the court below had violated the applicant ’ s right to use his own language in the proceedings, as explicitly provided for by section 8 of the Criminal Procedure Act and as guaranteed by Article 62 of the Constitution. It annulled the Kranj District Court ’ s decision of 29 April 2003 (see paragraph 38 above) and remitted the applicant ’ s application for the protection of legality for fresh consideration. 42. In the remitted proceedings, the Kranj District Court obtained a Slovenian translation of the applicant ’ s application for the protection of legality and referred it to the Supreme Court. 43. On 26 January 2006 the Supreme Court dismissed the applicant ’ s application for the protection of legality as unfounded. The Supreme Court established on the basis of the case file that immediately after placing the applicant in police custody, the police had informed him, with the assistance of the Russian interpreter, of the reasons for his arrest and his right to a lawyer. When questioned by the investigating judge, the applicant had also been assisted by the Russian interpreter and his court-appointed counsel. The Supreme Court found that there was no indication in the file that the applicant had been informed of his right to use his own language in the proceedings, either by the investigating judge or by the Kranj District Court. It also found no indication that the applicant had given any statement concerning that right. However, the lack of such notification, did not, in the Supreme Court ’ s view, undermine the legality of the final judgment, because the applicant had been assisted by a Russian interpreter and by counsel. The record of the hearing had contained no indication that he did not understand Russian. Moreover, the court noted that neither the applicant nor his counsel had raised any issue of a lack of understanding of Russian. The applicant was issued with an original copy of the Supreme Court ’ s judgment and a Lithuanian translation. 44. On 10 June 2006 the applicant lodged a constitutional complaint against the Supreme Court ’ s judgment, complaining that, while he had a rough understanding of Russian, he could not defend himself orally in that language, let alone in writing. In particular, he alleged that he had not been afforded an opportunity to defend himself in a language that would allow him to clarify the facts of the case and to respond effectively to the charges. He alleged that he had drawn the court ’ s attention to that fact but that his remark had not been recorded. In addition, the applicant complained that certain documents submitted in evidence had been in Slovenian and had therefore been incomprehensible to him, thus hindering his defence. 45. On 1 September 2007 the applicant was released on parole. 46. On 3 July 2008 the Constitutional Court dismissed ( zavrne ) the applicant ’ s constitutional complaint. It observed, inter alia, as follows: “All the complaints relate to the proceedings before the first-instance court. From the questioning by the investigating judge until the end of the trial, including during the appeal proceedings, the applicant was represented by counsel with whom he succeeded in communicating in Russian (that fact was not disputed by the applicant in his constitutional complaint ). In his appeal against the first-instance court ’ s judgment, the applicant did not mention the issues raised in the constitutional complaint but instead complained about police procedure, which is not a matter complained of in the constitutional proceedings. Only in his request for the protection of legality, lodged in his own language, and in his constitutional complaint, did the applicant complain of a breach of his right under Article 62 of the Constitution owing to the conduct of the District Court, which had ignored his remarks about his trouble understanding Russian ... Having regard to the foregoing and to the content of the constitutional complaint, the Constitutional Court examined whether the Supreme Court ’ s view ... violated the applicant ’ s right to use his own language provided for in Article 62 of the Constitution and whether there had been a breach of his defence rights under the first line of Article 29 of the Constitution. ... In accordance with section 8 of the Criminal Procedure Act, a court should inform a suspect or accused of the right to use his own language. The notification and the statement of the suspect or accused should be recorded in the hearing transcript in its entirety. The omission of such a notification or a lack of record of such a notification or statement can give rise to a material breach of the rules of criminal procedure under paragraph 2 of section 371 of the Criminal Procedure Act (that is, if such a violation affected his ability to defend himself). However, if the court acts contrary to an explicit request of a suspect or accused to use his own language and to follow the hearing in that language, the court commits a material breach of the rules of criminal procedure in an absolute sense under paragraph 1 of section 371 of the Criminal Procedure Act. In the reasoning of the judgment [the Supreme Court] noted that there was no indication in the record of the hearing that the applicant had mentioned that he had not understood Russian or that he or his counsel had requested the use of the applicant ’ s native language at the hearing. Nor had the latter issue been raised in the application for the protection of legality. ... The allegation that the court had failed to include the applicant ’ s statement in the record of the hearing was made for the first time in the constitutional complaint. The Supreme Court convincingly established circumstances that show that the applicant understood Russian well enough to receive a fair hearing using that language ... When considering the right to a fair trial it is important to note (and this also the Constitutional Court ’ s view) that in his application for the protection of legality the applicant did not raise a complaint that he had not been informed of his right to use his native language. Nor did he complain of that in his constitutional complaint. ... The impugned judgments therefore do not violate the right of the applicant guaranteed in Article 62 of the Constitution ... Having regard to the above findings and the fact that throughout the proceedings the applicant was assisted by counsel with whom he succeeded in communicating, his complaint that his defence rights guaranteed by Article 29 [of the Constitution] had been violated must likewise be dismissed. The complaint that some of the evidence in the proceedings was in Slovenian, thus preventing him from familiarising himself with it and defending himself, was not pursued in the proceedings before the lower courts. He has therefore failed to exhaust remedies in that regard ...” 47. The fees declared at the end of the trial by the interpreter and the applicant ’ s counsel, and paid for by the State, show that various services were provided to the applicant. Apart from interpreting during the investigation and court hearings, and the written translation of documents, A.G. took part in certain meetings between the applicant and his counsel. The lawyer visited the applicant in the remand prison for consultation purposes on 8 April ( forty-five minutes), 2 August ( thirty minutes) and 13 September 2002 ( twenty minutes), assisted by A.G., as well as on 9 July 2002 ( twenty-five minutes), though it is not clear whether on the latter occasion A.G. was present. The lawyer also assisted the applicant during his court appearances. He also lodged applications for remedies on his client ’ s behalf in the proceedings at first and second instance. | This case concerned the complaint of the applicant, whose native language was Lithuanian, that he had not had a fair trial after being charged with robbery because he had not understood the interpreting provided to him, which had been in Russian. |
126 | Placement measures | I. THE CIRCUMSTANCES OF THE CASE A. Events leading up to the intervention of the authorities in the first applicant's family life 11. The first applicant met N.A., the father of her children, in Belgium while he was in prison. He had been sentenced on 17 February 1984 to a life term of forced labour for offences that included robbery and attempted murder. He had several previous convictions for offences including theft, indecent exposure in the presence of a child aged under 15 and rape of a minor aged between 10 and 14 (for the latter two offences he was given a pardon and his sentence was reduced). The sentence of forced labour for life was subsequently reduced to twenty-seven years' forced labour following a pardon in 1991. 12. The elder child was born while N.A. was still in prison. Subsequently, the first applicant and N.A. married. On an unspecified date in 1993 N.A. failed to return to the prison and has remained on the Belgian authorities' wanted list ever since. In fact, N.A. and the first applicant had travelled to Italy with their child. 13. In February 1994 the younger son was born. However, the atmosphere in the family had begun to deteriorate. Arguments between the parents became worse and ended in outbursts of violence against the first applicant, who subsequently lodged a complaint against her husband (the Court has not been informed of the outcome of those proceedings). 14. In the meantime, M.L., a social worker employed by social services in the Florence region, had built up a good relationship with the first applicant's family. He was a former drug addict and was responsible for counselling a number of children from problem families who had been taken into care. He offered to look after the first applicant's elder son without payment at weekends. She accepted, since both she and her husband were working, she had to look after the baby, and social services did not provide assistance with children over weekends without charge. 15. Shortly afterwards the elder son started to have health problems. The first applicant took him to hospital several times but the problems were initially attributed to an inadequate diet. 16. In November 1996 the first applicant said that she did not want M.L. to visit her son any more. He then started to see the child at the first applicant's home and only in the presence of his parents. The first applicant sought to stop him seeing her son, but that had psychological repercussions on the boy, who tried to see M.L. without his parents' knowledge. 17. A short while later the boy informed a friend of the family about “unusual games” in which M.L. had persuaded him to participate on several occasions. On learning of their son's admission, the first applicant and her husband lodged a formal complaint with the police on 2 February 1997. 18. An investigation was started. The investigators rapidly discovered a number of factors showing M.L. to be at the centre of a paedophile ring. In particular, he was accused of having indecently assaulted several children since 1986 by taking advantage of his connections with social services and his role as a social worker (some of his presumed victims had been placed in homes and one even entrusted into his care by the Palermo Youth Court). M.L. was also accused of selling photographs taken during his sexual encounters with children, including the first applicant's elder son, and of running a drug-trafficking ring. 19. On 6 June 1997 the investigating judge ordered, inter alia, M.L.'s arrest. The judge noted that M.L., a former drug addict, had feigned a desire to reform and thereby succeeded in gaining access to public institutions responsible for the protection of children and had taken advantage of the children that both individuals and the public authorities had entrusted into his care. He was convicted at the end of the proceedings at first instance. 20. Meanwhile, social services began to examine the situation of the first applicant's family more closely. In a report of 30 January 1997, the case worker, Mrs S.G., stated that there was a serious conflict between the parents (the first applicant had complained about the situation to various authorities the previous summer) and difficulties in securing their effective cooperation. In a second report of 7 February 1997 a deterioration in the situation was noted. Furthermore, Mrs S.G. said that the younger child was not attending nursery school regularly because of minor ailments, while the elder child was described by his teachers as an intelligent and very active child. 21. On 25 February 1997 the Florence Youth Court ordered that the children and their mother should stay in a home designated by social services. It referred in particular to the complaint concerning the sexual abuse allegedly suffered by the first applicant's elder son. 22. In a report of 12 March 1997, social services indicated that it was difficult to find a home ready to accommodate both the children and their mother. Moreover, the first applicant had refused to be separated from her children and the elder boy had said that he wanted to stay with her. All three were provisionally accommodated in a hostel ran by Caritas, a charity. On the first applicant's initiative, the children began to attend school again. Social services also described the first applicant in that report as being unstable and fragile. 23. In March 1997 social services noted that it was impossible for Caritas to continue to provide a home for the first applicant. They also said that she seemed incapable of following a suitable programme for the protection of the children and that there were doubts as to her effective capacity to look after them. In addition, she had continued to see a man both on and off the premises and indicated that she wanted to return home, as her husband was no longer violent towards her. 24. A neuropsychiatrist employed by the local health authority stated in a report of 9 June 1997 that the first applicant appeared to be suffering from personality disorders. The relevant passages from the report read as follows: “... Mrs ... appears incapable of gauging reality and adapting her behaviour appropriately. She seems very confused about how to recount matters and about irrational acts. She is incapable of distinguishing between what is good and what is bad for the child and therefore incapable of protecting him; she alternates between times when she appears very childlike, in accordance with the idealised image of the mother, and times when she places G. in an adult role with seductive and subtly perverse traits. I can conclude that Mrs ... presents a serious personality disorder that at times affects the sphere of knowledge and ideation and at others the emotional and relational sphere, and that the hypothesis of a clinical 'borderline case' can be advanced. As matters stand, Mrs ... shows that she is not capable of managing the extremely complex family situation and G.'s particularly sensitive situation, still less of creating a sufficiently positive environment for him.” 25. It was noted in a school report of 10 June 1997 that the elder boy was becoming increasingly agitated and that the first applicant's attitude to both her son and school staff had tended to be highly erratic: at times aggressive, at others attentive. According to the school, it had proved very difficult to establish a constructive dialogue with her. A report by the social worker the following day confirmed the elder boy's increasing difficulties. 26. On 22 July 1997 the Youth Court ordered the elder son's placement in another home. The parents challenged that decision on 30 July 1997. On 8 August 1997 the Youth Court stipulated that the placement would last three months and was intended to provide an opportunity for the child's behaviour to be monitored. However, the boy manifested his dislike of that solution and ran away from the home, returning to his parents. Social services nonetheless insisted that he should remain in the home. 27. It was stressed in a private medical report lodged at the time that the boy, who was in terror of the priest who ran the home, needed a peaceful environment rather than to be surrounded by other children whose past was just as tragic as his own. 28. The younger child was transferred to another home in the meantime. 29. On 8 September 1997, at the end of a meeting attended by, inter alia, social workers and specialists who had been supervising the first applicant and her children, the representatives of the relevant social-services department concluded that the children needed to be separated from their natural family and recommended their placement in a community, “ Il Forteto ”, which was organised as an agricultural cooperative. 30. On 9 September 1997 the Florence Youth Court ordered the two children's placement at “ Il Forteto ”, pursuant to Article 333 of the Civil Code ( Condotta del genitore pregiudizievole ai figli – “parental behaviour harmful to the children”), suspended the father's and the mother's parental rights pursuant to Article 330 of the Civil Code ( Decadenza dalla potestà sui figli – “lapse of parental rights”), ordered that if the parents refused to comply, the decision was to be enforced with police assistance, and granted the parents the right to visit the younger son only, such visits to take place on the cooperative's premises and in the presence of members of its staff. The Youth Court observed, inter alia, that the parents had been uncooperative and had on one occasion taken the elder child from the home where he had previously been staying despite the protests of his carers. It also criticised the parents for having exposed the elder boy to a tragic situation – of which he had been the victim – over a lengthy period, without exercising the supervision which was expected of them as parents, or being alert to the alarm signals given by the child. Conversely, those signals had not escaped the attention of school staff, who had tried in vain to establish a dialogue with the family. Lastly, the Youth Court ordered social services to monitor the children's situation closely and to produce a proposal for the children's rehabilitation, based on what was observed. B. Matters relating the “ Il Forteto ” community 31. The case file reveals that at the end of the 1970s the cooperative was the subject matter of a criminal investigation into acts of bestiality and paedophilia allegedly committed there by three of its founder members. Two of them, L.R.F. and L.G., were arrested and later released, but nevertheless committed for trial. 32. On 3 January 1985 the Florence Court of Appeal convicted L.R.F. and L.G. of, inter alia, the ill-treatment and sexual abuse of persons who had stayed in the home (they were acquitted on the other counts as there was insufficient evidence). The Court of Appeal considered it appropriate to examine the evidence against the accused in the light of the situation at “ Il Forteto ”: leaders at the home sought to sever relations between the children in their care and their natural parents, while homosexuality was rife. Relying, inter alia, on the evidence of witnesses and partial confessions by the accused, the Court of Appeal found the case proved, in particular, on the following counts: ( i ) both L.R.F. and L.G. were guilty of ill-treating a handicapped 18-year-old girl who had stayed at the home for a few days by, inter alia, hitting her several times a day, insulting her in the presence of others, preventing her from communicating with the outside world and mocking her physical appearance. In addition, L.R.F. had spat in her face and, as an act of contempt, exposed himself to her. (ii) L.R.F. was also found guilty of having sexually abused ( atti di libidine violenti ) two mentally handicapped males, on one occasion in the presence of a 13-year-old minor. 33. L.R.F. was sentenced to two years' imprisonment and L.G. to ten months' imprisonment. They were nonetheless granted a stay of execution and the order banning them from holding public office was quashed. They also received an amnesty for an offence of wrongfully holding themselves out ( usurpazione di titolo ) as psychologists holding diplomas from the universities of Berne and Zürich. 34. Their appeal to the Court of Cassation was dismissed on 8 May 1985. 35. Both men remain on the staff working at the cooperative. In addition, one of them, L.R.F., was present during the aforementioned contact visit on 8 September 1997, which ended with the relevant social services department recommending to the Florence Youth Court that the first applicant's children be placed at “ Il Forteto ”. According to the most recent information available to the Court, L.R.F. is currently the president of that community. 36. The case file and, in particular, one of the books published on “ Il Forteto ” ( Ritratti di famiglia, Florence, 1997), revealed that some of the people working in the community, or who have been staying there, come from problem families and have suffered violence at the hands of paedophiles. 37. In support of her allegations, the first applicant has also produced various statements in writing, beginning with statements by three people who have given their identity and whose respective niece, sister and daughter stayed, for various reasons, at the community in question. The relevant extracts are set out below. 38. Statement of the first witness: “... the little girl recognised me and came towards me; a man standing next to her, came towards us and told us to leave ... I went to'Il Forteto'on another occasion in 1997 ... I tried a number of times but always received negative replies ...” 39. Statement of the second witness: “... the girls who went to'Il Forteto'were malnourished and demoralised. My sister was one of them. When she returned to my mother's house she didn't speak and couldn't express her ideas coherently; my mother and I had to feed her with a teaspoon for several months ...” 40. Statement of the third witness: “... in May 1991, late in the evening in the presence of other members of the family, she was so frightened that she could not even manage to explain and kept repeating that she did not want to go back to'Il Forteto '. That made us aware that terrible things are going on at'Il Forteto '. She had to go back because they were blackmailing her ... She had in the past been hit by ... G. ... L. ... for refusing to participate in certain acts of violence which she did not want ... I am prepared to give evidence before the European Court.” 41. The applicants have also produced two other witness statements in writing. Both are signed. 42. The first is by a municipal councillor from a village in the region. She affirmed that the children's guardian, whom she already knew and to whom she had referred for information on the case, had advised her not to get involved. Furthermore, according to her statement, L.R.F. had invited her to visit the community after she had expressed doubts about it in public at a ceremony for the presentation of one of the books published on the community. Despite her repeatedly expressed wish to meet the children, she was consistently denied an opportunity to do so, various reasons being given. 43. The second statement was made by two officially assigned experts working for the Florence Youth Court who had had a role in the case concerning the first applicant's children. According to their statement, the two experts – one a neurologist, the other a psychiatrist, and both directors of a family-therapy medical centre in Florence – had asked “ Il Forteto ” to allow trainees from the centre to work at the community or at least to visit it. On each occasion, their requests were turned down for reasons which the experts found “absurd”, such as, for example, the fact that the community was not a public institution. A student from the centre, attending a training course recognised by the Tuscany Region in 1996/97, had nonetheless managed to gain access to the community during his studies. During his visit he learnt from one of the leaders of the home that the families looking after the children were not necessarily the ones formally named in the court order. 44. The applicants also referred to passages taken from one of the books published on the community ( Il Forteto, Florence, 1998). 45. They quote, inter alia, the following passages relating to the vexed issue of the presence of certain adults at the home: “Therefore, they each decided to share a mutually enriching experience with the others which would assuage the affective deficiency which had been their driving force” (p. 94). “Thus each member found and continues to find, through this experience, a sense of belonging, cohesion and love which elsewhere, in his family of origin, was lacking” (p. 95) 46. The applicants also quote the following passage, which refers to the authorities implicated in the criminal proceedings against some of the leaders of the community: “Many years have passed and the case has become clearer as the evidence of the machinations against them, which even today is kept in the villa, has been gathered. Even in that regard they display a Christian attitude which, frankly, I envy. Today, they could easily bring criminal proceedings or an action in damages against certain judicial officers, but do not do so ... At the time, the behaviour of the judicial authorities was schizophrenic. While making accusations against'Il Forteto'via the Florence Public Prosecutor's Office, they continued to place children in the care of that structure through the Youth Court. S ... was put into R ... at precisely that time” (p. 31) C. Suspension of contact between the first applicant and her children until the decision of the Florence Youth Court of 22 December 1998 47. Within the community, the children were put into the care of Mr G.C. and Mrs M.G., the couple designated in the court order of 9 September 1997. The applicants allege that by October 1997 the first applicant's elder son, despite being of school age, had still not started school. In fact, he was enrolled on 23 October 1997 and began lessons on 4 November 1997. 48. On 10 and 14 October 1997 respectively the children's guardian and the public prosecutor applied to the Court for an order temporarily suspending contact with the younger boy, too. 49. On 4 November 1997 the first applicant complained to Judge S. of the Youth Court that since that court's decision of 9 September 1997 she had been given no further opportunity to see her children. 50. On the same day the psychology unit at the local health authority ( Unità sanitaria locale ) certified that the first applicant was in good psychological health. 51. On 18 November 1997 the Youth Court noted that contact between the parents and the younger son had not yet begun. In view of the pending applications by the guardian and the public prosecutor, it ordered the appropriate child- neuropsychiatric centre to verify whether the time was ripe for a resumption of parental contact. 52. On 25 November 1997 the first applicant made representations to the guardianship judge requesting execution of the Youth Court's decision concerning contact with the younger son. 53. Other attempts by the first applicant to see her younger son by going directly to “ Il Forteto ” were unsuccessful. Subsequently, there was a deterioration in relations between the first applicant and certain leaders of the community responsible for her children. The latter lodged a complaint against her accusing her of having threatened and assaulted them verbally and physically. They alleged that, on at least one occasion, she had done so with the assistance of her former husband, whom, they said, she continued to see (a letter relating the incidents was sent on 7 January 1998 to the public prosecutor and to the Youth Court; it bore the signature of L.G.). 54. On 3 December 1997 the first applicant requested the Youth Court to rescind its decision of 9 September 1997 because of a change of circumstances in the interim, she and her husband having just separated. She added that the realities of children's homes were often “ambiguous”. 55. On 7 December 1997 the first applicant made a further complaint to the Youth Court. She said that “ Il Forteto ” had repeatedly refused to allow her to see her younger son and had disregarded the court's decisions. She requested it to obtain the information needed to establish whether the community was really defending the children's interests, not just private ones. 56. On 15 December 1997 the elder child was questioned by the public prosecutor's office. According to the record, the interview took place in the presence of the foster parents, Mr G.C. and Mrs M.C., though one of them (probably Mrs M.C.) signed the record using L.G.'s surname (see paragraph 114 below). 57. On 15 January 1998 the first applicant was served with notice to attend a hearing before Judge S. of the Youth Court. At that hearing, she informed the judge that certain leaders of “ Il Forteto ” had been prosecuted in the past for abuse and violence against people who had stayed in the community. 58. Following the various steps taken by the first applicant, the Florence Youth Court noted in an order of 6 March 1998, firstly, that the initial examinations conducted by the child- neuropsychiatric centre showed that, while displaying open-mindedness, the younger child had at the same time denied his past and his parents. In particular, he had referred to his mother only on repeated prompting by staff from the centre. Observing that the child appeared to be in the process of coming to terms with a particularly difficult first phase in his past, the Youth Court considered it necessary for contact between the first applicant and her younger son to be preceded by preparatory sessions for both mother and child. The child was to be counselled by the social services department already responsible for his supervision, and the mother by the relevant psychology department. The court also ruled that contact could start once the preparatory work had been completed and the child had shown himself ready to resume relations with his mother. Lastly, it said that the contact was to be supervised by the social workers concerned, while the relevant authorities were to inform it when contact could begin and to advise on progress. 59. On 30 March 1998 the first applicant informed the Belgian embassy in Italy of the danger presented by the community. She requested the intervention of the Belgian authorities. 60. On 6 April 1998 the younger child was examined by a specialist. He was accompanied by Mr M.S. and Mrs M.G., as foster parents. 61. Subsequently, the relevant social services department held preparatory sessions with the first applicant on 21 April, 19 May and 9 June 1998. The children attended several sessions with a neuropsychiatrist and were also required to take part in a number of logopaediatric sessions. 62. There was a meeting of all the services concerned on 6 June 1998, at the end of which two initial contact visits between the first applicant and the younger child, each lasting an hour, were arranged for 8 and 14 July 1998. The visits were to take place in the presence of various specialists, including a social worker from the area in which “ Il Forteto ” was located, who was to accompany the child. The specialists were to observe the visits from behind a two-way mirror. 63. The first applicant had requested that her lawyer also be allowed to attend the visits and informed the Youth Court of that request. However, it was turned down on the ground that the presence of undesignated persons was not envisaged and, in addition, the therapeutic nature of the arrangements made it necessary to restrict attendance to the specialists from public bodies. 64. On 22 June 1998, however, the first applicant said that she was unwilling to see the younger child without his brother in view of the probable suffering that the elder child would endure on learning that only his younger brother was to be allowed to meet their mother. On 25 June 1998, Mrs C.C., a psychologist from social services, invited the first applicant to inform her whether she intended to stand by that decision and warned her that, unless she received a response, the contact visit would be cancelled. At that point, the first applicant changed her mind. 65. On 29 June 1998 L.R.F., one of the two leaders of “ Il Forteto ” convicted in 1985, sent a letter to the deputy public prosecutor at the Florence Court of First Instance concerning the first applicant's children. In the letter, he stated, inter alia : “... we do not want the children to nurture absences which could develop into internal fantasies and consequently bring contact with their parents to an abrupt and definitive end, but we consider it very important to put off such contact to a more suitable moment and to give the children sufficient time to absorb the negative and guilt-ridden images which their parents evoke ...” 66. On 2 July 1998 the deputy public prosecutor informed the Florence Youth Court that an investigation had been opened concerning the first applicant and her former husband, who were suspected of abusing the children. The deputy public prosecutor also drew the Youth Court's attention to the fact that the scheduled contact visits between the first applicant and the younger son, which he said he was aware of, could jeopardise the investigation as an expert examination due to continue throughout September 1998 was under way in order to determine whether that child presented symptoms of sexual abuse. He indicated that during recent interviews with a specialist, the child had begun to reveal matters of relevance to the accusation against his father, and added that he could not exclude a like accusation subsequently being made against the mother. 67. On 6 July 1998 the Youth Court decided provisionally to suspend the contact visits scheduled for 8 and 14 July, pending the outcome of the new investigation. It considered that the investigation, in connection with which an expert psychological examination of the younger son had been ordered, might be hindered by the visits. 68. On 14 July 1998 the elder son was questioned. Mr G.C. and Mrs M.C. were once again present as the “foster parents”. 69. In a note of 31 October 1998, the public prosecutor repeated that it was necessary for the children to be heard in connection with the investigation and desirable for them to be kept safe from any intimidating behaviour on the part of the parents that might undermine their recently recovered composure and compromise the results of future examinations. He stated in his memorandum that the children would be questioned as soon as possible regarding the matters disclosed in the psychologist's report, which matters would be communicated to the Youth Court once the confidentiality obligations that attached to the proceedings under way had been lifted. 70. In addition, R.L., a neuropsychiatrist responsible for assessing the children, stated in a report of 11 November 1998 that a programme designed to help them renew contact with their parents was being prepared with the foster parents. D. Action taken by the second applicant 71. On 14 October 1997 the second applicant lodged an initial application for an order granting her parental rights over the children. 72. On 4 March 1998 she requested permission to see the children at least twice weekly. 73. On 15 May 1998 she made a further application to the Youth Court for permission to see the children. She said that she had not seen them since June 1997 and had learnt of the events that had resulted in the Youth Court placing the children in a community indirectly ( de relato ). 74. At the end of the hearing on 12 June 1998, which the second applicant attended, the Florence Youth Court instructed the relevant child-psychology and neuropsychiatry departments to provide preparatory counselling to the children and their grandmother before contact began. The Youth Court noted that the latter had shown a real interest in renewing relations with the children and had indicated a willingness to follow the programme of counselling to be organised by the court-appointed services. 75. Subsequently, the second applicant nonetheless appealed against that decision, her principal claim being to parental rights over the children. In the alternative, she asked to be allowed to see them at least twice weekly without prior counselling, since she was in any event prevented from attending such a course as she could not remain in Italy. In support of her application she contended, inter alia, that the application she had lodged in October 1997 had still not been examined and that she had looked after the elder boy in the past. 76. On 6 July 1998 the Youth Court dismissed her appeal. It stated, in particular, that it failed to comprehend why the second applicant could not remain in Italy to attend the preparatory course arranged by the specialists, since she had asked to see the children at least twice weekly, which would inevitably mean her travelling to Italy on a regular basis. The Youth Court also considered that counselling was essential in view of the gravity of the events, which had seriously marked the children, and of the need to avoid jeopardising the delicate task of rehabilitation on which the specialists had embarked. Lastly, removing the children from Italy might hinder progress in the pending criminal investigation into offences that may have been committed by the parents. 77. Meanwhile, on 19 June 1998 the second applicant had requested the Belgian consulate in Italy to have “ Il Forteto ” inspected by the Belgian diplomatic authorities. The Belgian diplomats did not note anything untoward during their visit. 78. On 15 July 1998 the second applicant requested the Belgian authorities to seek the transfer of the children to Belgium under the Convention concerning the powers of authorities and the law applicable in respect of the protection of minors concluded at The Hague on 5 October 1961. E. Decision of the Florence Youth Court of 22 December 1998 and the contact visits between the first applicant and her children 79. On 22 December 1998 the Florence Youth Court examined the first applicant's application of 3 December 1997, the second applicant's application of 14 October 1997 and the guardian's application of 10 October 1997. It began by reconsidering its decision of 6 July 1998 and ordered that the counselling programme in preparation for contact between the two applicants and the children should begin immediately. The meetings were to start on 15 March 1999 at the latest. As regards the second applicant, the Youth Court considered that her recent move to Italy would facilitate the implementation of the preparatory programme. It nonetheless renewed its orders suspending parental rights and for the children's placement at “ Il Forteto ”, as the first applicant's domestic situation remained very difficult – despite her separation from the children's father – while the children had adapted very well to their foster home. Lastly, the Youth Court also envisaged a resumption of relations between the children and their father, who had shown a willingness to re-establish contact. Contact visits by the father could not, however, start before September 1999, owing to the uncertainty of his position while the criminal investigation was pending. 80. On 8 January 1999 a judge of the Youth Court informed the Sesto Fiorentino Social Services Department that, in order to ensure continuity, it would be responsible for continuing the work of counselling for the visits ordered by the court on 22 December 1998. The court observed that the first applicant had requested that contact visits should commence. 81. On 13 January 1999 the Sesto Fiorentino Social Services Department declared that it had no power to organise the counselling, as the first applicant had moved and the social worker hitherto assigned to her case had been transferred in the meantime. 82. On 4 February 1999 the Figline Valdarno Social Services Department assigned a social worker to monitor the first applicant's progress. When giving evidence to the Youth Court on 8 February the social worker admitted that she was unfamiliar with the case, but said that she was conscious of the urgency of the situation and undertook to prepare the mother for contact with her children by no later than 15 March, the deadline set by the court. 83. On 9 February 1999 a social worker from Vicchio (Mrs S.C.) and the child- neuropsychiatrist, Mr R.L., who were responsible for monitoring the progress of the first applicant's children and who had already prepared a programme of meetings with the children and the foster parents, informed the Youth Court that they had reservations as to the appropriateness of their being asked to counsel the children's father and grandmother with a view to contact. According to the social services department, there was a danger that the close proximity of the children would create tensions, added to which it did not know either the father or the grandmother. For those reasons, it suggested that they should receive preparatory counselling from their local social services. 84. On 12 February 1999 the Head of the Figline Valdarno Social Services Department informed the Youth Court that it was encountering difficulties in obtaining all the documents relevant to the case. She proposed that the court should therefore convene a meeting of all the specialists and social workers involved. 85. On 15 February 1999 the Youth Court replied, inter alia, to the Social Services Departments of Figline Valdarno and Vicchio; it informed them that the court proceedings had finished and that, accordingly, the administrative and organisational matters were to be dealt with by social services. It remarked, too, on the length of time that social services had taken since its decision and reminded them that they should be giving it their urgent attention. 86. On 18 February 1999 the Figline Valdarno Social Services Department convened a meeting of all the social services departments involved. On 25 February 1999 the Vicchio Social Services Department informed the children's guardian that the programme of pre-contact counselling had begun in mid-January. 87. On 2 March 1999 the elder boy sent a letter to the president of the Youth Court. Among other things he said that he had not seen his grandmother for four years and did not understand why she would want to see him again. As to his mother, he said that she had always sought to justify the conduct of his “social workers”, even though he had informed her of their conduct. It was only on arriving at “ Il Forteto ” that he had been able to comprehend, thanks to Mrs M. and Mr G., what he had been through and what it meant to have a father and mother. For those reasons, he did not want to see his mother at that stage. (He signed the letter using the surname of one of his official foster parents at “ Il Forteto ”, before also adding his own surname.) 88. On 8 March 1999 the Florence Social Security Department informed the Youth Court that the various tasks had been assigned. However, it was not possible to set a date for the visits to begin as G. was now reluctant to see his mother immediately after seeing a specialist on 26 February 1999 (see paragraph 116 below). It added that the meetings with the grandmother and the father would begin during a second phase. 89. A few days later G. informed the Youth Court that after his experience with the specialist he did not wish to meet his mother or grandmother for at least three months. 90. After the first applicant had received preparatory counselling, the initial contact with the children nonetheless took place on 29 April 1999. G., so it appears, preferred not to leave his younger brother to see their mother on his own. According to the reports of social services dated 21 June and 5 July 1999, that first visit showed that both the children and the mother were experiencing difficulties. The mother was not sufficiently receptive to what the children said, while they perceived her insistence as a threat to the stability of their new environment. The children had been mistrustful from the outset of the visit and the younger child had not even acknowledged that the first applicant was his mother. Social services observed that despite the children's wish to see their mother, they had been disappointed. 91. However, having viewed the video recordings of that first visit produced by the Government (see paragraph 10 above), the Court has found nothing to support the appraisal and unfavourable comments of social services to which the Government refer. The visit took place in a room in the psychology unit at the social services department. It was friendly and the atmosphere was reasonably relaxed. Towards the middle of the visit the elder son began to cry, very probably when old wounds from his dramatic past were reopened. The episode was brief, he appeared relieved afterwards and calm was quickly restored between the first applicant and the children. Social services displayed an evident lack of tact towards the first applicant. Two people – either social workers or specialists – were present in the room throughout the visit so that the first applicant was at no stage able to enjoy any intimacy with her children, added to which, the visit was ended rather abruptly. The Court's view is that overall, though tense, the relationship between the first applicant and her children was warm and relaxed. The first applicant behaved responsibly throughout the visit, proved ready to cooperate and was respectful. Although the children did not manifest any obvious regret when the visit ended, the Court considers that the terms summarised above which social services used in their reports to describe the visit were unduly dramatic and unfavourable to the first applicant, and do not correspond to what was seen on the video recording produced by the respondent Government. 92. That notwithstanding, the elder child wrote to the social workers on 6 May 1999, expressing disappointment with that first contact. 93. A second visit took place on 9 September 1999. According to the report of social services, G. on this occasion sought an explanation from his mother for her alleged failure to react to his allusions to the paedophile violence to which he had been subjected. He had left the room when the first applicant refused to accept his criticism. In their report, social services stressed the first applicant's inability to listen to her son or to follow the recommendations of the specialists, while at the same time showing understanding of her painful situation and her desire to assert herself in her role as mother. According to a subsequent report (see paragraph 95 below), one of the specialists present during the contact visit had suggested to the first applicant that she write a letter to her son but, according to the report, she had refused. 94. However, having examined the audio recordings produced by the Government (see paragraph 10 above), the Court has found nothing to support social services' position. The arrangements for this visit appear to have been similar to those for the first in that, in particular, it was held on premises belonging to social services, again in the presence of two specialists. The following points arising from the focal points of the visit have enabled the Court to identify once more discrepancies between social services' official report and what was heard on the recording. In particular: ( i ) the report does not mention the fact that the first applicant asked the children whether they were happy to see her again or that they said that they were; (ii) the elder son did not raise the question of his mother's role in the paedophile assaults on him on his own initiative, as the report seems to suggest, but was prompted to do so by one of the two specialists present; (iii) after the visit was over, one of the specialists told the first applicant that in reality her elder son had not wanted to see her again and that the new visit had only proved possible thanks to the efforts of the other specialist present; (iv) the experts said that whether there were to be further visits would depend on the elder son and that the first applicant would be able to see her younger son “if possible”, to which she had reacted by asking them what they meant by the latter expression, but the specialists had replied that the answer did not depend on them. 95. On 4 October 1999 the specialists from social services met the children at “ Il Forteto ” in the presence of the foster parents, with a view to assessing the short-term prospects of contact with their mother continuing. According to the report of social services, the meeting ended “with an agreement, at G.'s and M.'s request, to suspend contact with their mother for the time being”. A further session of preparatory counselling was nevertheless arranged with the first applicant for 9 November 1999. 96. On 3 January 2000 a specialist from social services met the first applicant. At the meeting, the latter complained that the children's Christmas presents had been refused. She reiterated her attachment to the children and her willingness to explain matters to them if they agreed to meet her. Since then, no further visits have been organised or programmed. Furthermore, in their last report (29 March 2000), social services said, inter alia, that: ( i ) the elder child was in the process of acquiring a new identity marked by the suffering from the past and, consequently, did not appear to be being manipulated; (ii) he considered it preferable not to see his mother again during the next two years; (iii) social services had decided to suspend all contact between the first applicant and her children, while at the same time continuing to counsel her with her a view to keeping her informed of any changes in the children's attitude on that subject. 97. As to the father, he has not visited the children at all, despite the fact that preparatory counselling sessions with social services were held at the end of 1999. From a report by social services dated 8 November 1999, it would appear that the father was aware of the evolution of the situation between his former wife and the children, and in particular of the negative outcome of the visit on 9 September 1999. The first applicant maintains, however, that she was no longer in touch with him and that he spent his time travelling between Belgium and Italy. F. Further appeals by the applicants 98. On 21 January 1999 the first applicant appealed against the decision of the Youth Court of 22 December 1998. Her primary request was for reinstatement of her parental rights and an immediate renewal of contact with her children. She contended in particular that she had in the meantime separated from her former husband – whom the relevant judge had regarded as being responsible for violence against both her and the children – and now led a normal life and was working as a chiropodist. 99. The first applicant also challenged the decision to keep the children at “ Il Forteto ” and requested their placement elsewhere, arguing: ( i ) that it was difficult for the parents of children staying in the community to gain access to them; (ii) L.R.F. and L.G. remained the most important figures at “ Il Forteto ”, despite their convictions; (iii) the foster parents at “ Il Forteto ” were doing all they could to hinder a resumption of relations with the children. 100. The second applicant also appealed. 101. On 22 March 1999 the children's guardian intervened in the proceedings before the Court of Appeal, requesting the suspension of contact for several months, inter alia, on the grounds that: ( i ) the first applicant had largely exaggerated her professional qualifications; (ii) for several years she had failed to notice what her elder son, G., was going through, which demonstrated that she was incapable of assuming her role as mother; (iii) the grandmother had always lived in Belgium and had not shown any real interest in the children. In addition, no one knew what she had been doing since moving to Italy. Furthermore, it was difficult to see how she could claim to be able to provide the children with a good upbringing when she had not succeeded in doing so for her daughter (the first applicant), who, at best, was an inadequate, unsuitable and absent mother; (iv) the children's father was a fugitive criminal after his escape from prison in Belgium, where he had been serving a 27-year prison sentence for murder; (v) “ Il Forteto ” was a cooperative that was internationally famous for its production of milk and cheeses, but also an innovative home for the protection of children in distress that had been founded by twenty families who had never abandoned it. While it was true that two of its members had convictions (although they were not, in any event, members of the family looking after the first applicant's children), it was equally true that such prosecutions could be based on false evidence. Furthermore, over a twenty-year period, some seventy children had been placed with the cooperative by courts from regions all over Italy and a number of those care orders had subsequently resulted in adoptions, thus confirming the validity of that option and the courts' confidence in “ Il Forteto ”. 102. The public prosecutor at the Court of Appeal requested that the children be put into the care of their grandmother or, failing that, of another family. 103. On 31 March 1999 the Court of Appeal upheld the decision of the Youth Court. It emphasised, in particular, the positive evolution of the children's situation and considered that the allegations concerning “ Il Forteto ” were of a general nature, with the exception of the events of twenty years earlier, which in any event did not concern the children's foster parents. Although the applicants had produced statements from highly qualified people contesting the methods employed at “ Il Forteto ”, the fact that there were other statements from equally qualified people confirming its reputation could not be disregarded. The good conditions in which the children were living made it unnecessary to accede to the grandmother's request as, though in theory it was preferable to put children in the care of a member of the family rather than in a community, the children had by that time been staying with the community for some while and the results had been positive. Moreover, the children did not know their grandmother very well and she did not appear to be independent of her daughter. 104. The first applicant appealed to the Court of Cassation. As to the placement of the children at “ Il Forteto ”, she observed that even though the children were not in the immediate care of the two leaders with convictions, it had been the latter who had brought the foster parents into the home and trained them (L.R.F. had even become the president of the cooperative ). Moreover, L.G.'s wife was actively involved in looking after the children, the elder son, G., having admitted in his letter of 2 March 1999 that it had been she who had helped him to interpret his doubts about his mother. 105. The Court has not been informed of the outcome of the proceedings before the Court of Cassation. 106. On 25 October 1999 the first applicant asked the guardianship judge to request that contact visits be arranged at more regular intervals than in the past and to permit a psychologist to interview the children in “ Il Forteto ” and attend the counselling sessions prior to the visits. On 3 November 1999 the guardianship judge agreed in particular to the requests relating to the presence of the psychologist at the preparatory sessions and at the visits with the children and to the production of the audio-visual recording of the meetings. The children's guardian appealed. 107. In a decision of 12 January 2000, the Florence Youth Court allowed the guardian's appeal and reversed the decision of the guardianship judge. On the basis of the information supplied by social services it found that the negative results of the two visits should be attributed to a lack of cooperation on the first applicant's part. Accordingly, the presence of another specialist during visits to facilitate a change in attitude by the first applicant did not appear necessary, as she was already receiving sufficient counselling from the institutional services appointed by the court. As regards the audio-visual recording of the visits, the Youth Court considered that it would not be appropriate for the first applicant to view such material, as the purpose of recording the visits was to enable the relevant authorities to assess whether the visits had been a success and whether it was possible and appropriate for them to continue. 108. The first applicant appealed against that decision. She argued, inter alia, that the Youth Court had accepted social services' conclusions regarding the negative results of the visits as they stood; it had failed in its duty to supervise the implementation of its decisions critically and with the help of relevant objective evidence such as the audio-visual recordings which she had asked to be produced. In her submission, apart from the fact that she failed to see how a visit which she had been looking forward to for years could have been interpreted so negatively, her right to examine the recordings was all the more founded in that it would help her gain a better understanding of herself and to adapt her behaviour. It was, furthermore, absurd for the Youth Court to refuse to examine the recordings itself or to allow the guardianship judge to do so. Lastly, the presence at the preparatory sessions and during contact visits of a specialist chosen by the applicant would help her to take part in her children's family and psychological development, particularly as there was no statutory provision to prohibit a parent from seeking the additional help of private psychologists to prepare for re-establishing relations with his children. 109. In a decision of 17 March 2000 the Youth Court authorised the showing of the audio-visual recordings to the first applicant, since they had already been produced to the Court and consequently were of procedural, as well as clinical, value. G. The programme of visits by the second applicant 110. The second applicant was invited on 4 November 1999 to begin a programme preparing her for contact with her grandchildren. However, the notice of appointment was returned to the sender. Inquiries were made to establish whether the second applicant had changed address in the meantime. At the first applicant's suggestion, a further notice was sent to the first applicant's sister, but social services were informed that the second applicant was still unable to attend. They received the same reply for a session scheduled in December 1999. The second applicant explained her absence by the fact that she had had to return to Belgium as a matter of urgency as the invalidity benefit she received for her handicapped son had been cancelled because of her move to Italy. The first preparatory session with social services finally took place on 10 January 2000. 111. According to the report prepared by social services, the second applicant complained at that session that she had not been given an appointment in March 1999 and said that she could not leave Belgium for more than three months at a time, as otherwise she risked losing the invalidity benefit she received there for her handicapped son. She said that she wished to see the children and wanted them to live with her. She justified her silence over a period of several months by the fact that she did not know what stage the programme of visits between the children and her daughter had reached, as she no longer had any contact with the latter. It was also mentioned in the report that the second applicant had advised against the children being returned to their mother because the latter continued to see her former husband, as had been confirmed both by her daughter herself and by neighbours. The cause of all the problems was N.A.'s violence and the first applicant's inability to defend either herself or the children. She had concluded by saying that she was unhappy with the fact that the children had been sent to “ Il Forteto ”. 112. According to the most recent information received from the first applicant, the second applicant will be required to reimburse a substantial sum to the Belgian State in respect of benefit received during the periods when she was staying in Italy, and in February 2000 she was admitted to hospital with heart problems. H. Subsequent developments in the criminal proceedings against the first applicant 113. On 19 June 1998 the guardian sent a letter to the public prosecutor written the previous day by the elder child, in which the boy said that his mother had been aware of the paedophile abuse to which he had been subjected and that on one occasion he had witnessed her receiving money from M.L. 114. The child confirmed his accusations on questioning by the public prosecutor on 14 July 1998. He was accompanied to the interview by Mr G.C. and Mrs M.C. (who was in fact Mr L.G.'s wife), as foster parents. 115. On 11 November 1998 the public prosecutor questioned M.L. about the accusations made against the first applicant by the elder child. M.L. denied what the child had said and concluded: “What I have said up to now is the simple truth. I would have no difficulty in confirming what G. has said if it were true ... I believe that G. has invented, at least in part, what he has said because of bitterness towards his parents. G. had a very poor relationship with his father, but adored his mother. Perhaps he later became rather bitter because he felt that she had not done enough to protect him. If I could confirm what he has said I would do so, to help him, too.” 116. On 27 February 1999 the children were examined by a specialist in the presence of the investigating judge. The judicial authorities' assessment of the results of the specialist examination is not yet known. During the examination, the elder child admitted having written the letter of 19 June 1998 in the presence of, inter alia, R. (probably L.R.F.). He also said that he would be pleased to see his mother again. 117. In addition, on an unspecified date and in circumstances that have not been clarified, the first applicant's sister was heard by the Florence Youth Court. She stated that she was living with her mother and one of her brother's at Figline Valdarno and that another brother, who had been involved in drug trafficking, had been killed. An elder brother who had not forgiven her for having intervened as a civil party in the criminal proceedings instituted following the death of the other brother had accused her of attempted murder. According to the record of her sister' statements, the first applicant had also been charged. I. Other information relating to the children's mental and physical welfare 118. In a certificate of 8 June 1998, the neuropsychiatrist, R.L., noted that the younger child was fragile psychologically and advised the authorities to act with great caution. 119. In addition: – a doctor's certificate dated 1 November 1998 described the elder child as being in “excellent” health; – a certificate by another doctor dated 11 November 1998 expressed the view that the younger child's health had improved and was “good”. 120. A certificate drawn up by a paediatrician on 24 November 1998 stated that the children were in excellent health and that their development and growth appeared normal. 121. In addition, the school report on the elder child for the school year 1997/98 and a report by the teachers stated that he was working hard and making constant progress. 122. Social services said in a report of 5 July 1999 that the children's stay at “ Il Forteto ” had been very positive from both an emotional and a relational standpoint, had enabled them to recover a degree of equilibrium and made them more receptive to interpersonal relations. 123. Lastly, in their last report (29 March 2000) social services said that the younger child was now attending nursery school and his relations with the teachers were very good. | In September 1997 the applicants’ two sons/grandsons, born in 1987 and 1994, were placed by court order in the “Il Forteto” children’s home, where – as the national court was aware – two of the principal leaders and co-founders had been convicted of sexual abuse of three handicapped people in their care. Prior to his placement in the home, the eldest boy had been a victim of sexual abuse by a paedophile social worker. |
192 | Prohibition of discrimination (Article 14 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1968 and lives in Colognola ai Colli, in the province of Verona. 7. The facts of the case, as submitted by the parties, can be summarised as follows. A. Background to the case 8. The applicant ’ s relationship with J.C.N., a Kenyan national, began in 2003. They had two children, P. and A., who were born in August 2006 and March 2008 respectively. 9. The applicant submitted that her relationship with J.C.N. deteriorated rapidly. In 2008 they undertook relationship therapy, which was interrupted because J.C.N. was suffering from depression. He also took no interest in the business he had set up with the applicant in 2006. 10. According to the domestic court ’ s judgments, on 16 November 2008 J.C.N. hit the applicant several times and threatened her with a knife and a pair of scissors during a violent argument concerning the relationship that she had begun with a common friend. J.C.N. locked the applicant in the flat and took the keys in order to prevent her from leaving. Their children were asleep in the flat and one of them, awakened by the screaming, witnessed part of the aggression. 11. The carabinieri, called by the neighbours, intervened at the couple ’ s home. The applicant was taken to hospital in a state of shock. She was diagnosed with, inter alia, concussion, injuries to the head and several bruises all over her body. B. Criminal proceedings against the applicant ’ s former partner 12. J.C.N. was arrested and detained. He was charged with attempted murder, kidnapping, aggravated violence and threatening behaviour. He subsequently asked the authorities in charge of the preliminary investigation to adopt the summary procedure ( giudizio abbreviato ) provided for in Articles 438 to 443 of the Code of Criminal Procedure (“the CCP”). 13. On 2 April 2009 J.C.N. was found guilty and sentenced to four years and eight months ’ detention. 14. The applicant did not join the criminal proceedings as a civil party. 15. On 11 December 2009 the Verona Court of Appeal reduced the sentence to three years and four months ’ detention. 16. By a decision issued on 7 October 2010 the Court of Cassation dismissed an appeal lodged by J.C.N. C. Execution of the sentence 17. On 6 October 2009 J.C.N. applied to the Venice Court of Appeal seeking to serve the remainder of his sentence under house arrest at a reception centre located in the municipality where the applicant was living (Colognola ai Colli). 18. On 3 November 2009 the Venice Court of Appeal dismissed J.C.N. ’ s application, referring, inter alia, to the proximity of the facility indicated (2 km) to the applicant ’ s home, the psychological condition of J.C.N. and the risk that he might try to contact the applicant. 19. On 1 June 2010 J.C.N. lodged another application for house arrest, indicating a reception centre (“Don Nicola”) located in Soave, a different municipality of the province of Verona, about 15 km from the applicant ’ s home. The centre was managed by a non - profit -making organisation called Sulle Orme. 20. The Venice Court of Appeal ordered an inspection of the facility indicated by J.C.N. in order to assess its suitability to host him. The inspection was carried out by the carabinieri, who highlighted that the facility in question had already hosted persons whose prison sentence had been replaced by house arrest, without any complications having arisen. They further stressed that they carried out regular surveillance of the persons hosted by the centre. They consequently concluded that the facility was suitable to host the applicant ’ s former partner. 21. On 18 June 2010 the Venice Court of Appeal granted J.C.N. ’ s request. 22. On 24 September 2010 the Venice Court of Appeal granted J.C.N. permission to work outside the reception centre during the grape - harvest season. 23. On 2 August 2011 J.C.N. finished serving his sentence and was released. He decided to continue residing at the reception centre. D. Proceedings before the Venice Juvenile Court 24. On 24 April 2009 the applicant lodged an application with the Venice Juvenile Court seeking sole custody of her children and the forfeiture of her former partner ’ s parental rights. 25. On 15 May 2009 the applicant was granted sole custody of her children. In February 2010, after having heard both the applicant and her former partner, the Venice Juvenile Court ordered the forfeiture of J.C.N. ’ s parental rights and prohibited any form of contact between him and the children. The court stressed that J.C.N. could apply for the restoration of his parental rights once he had served his sentence and followed a path aimed at acquiring the parental skills he had been shown to be lacking. 26. In January 2012 J.C.N. applied to the Venice Juvenile Court seeking the restoration of his parental rights and the suspension of his financial obligation towards his children. No information was submitted to the Court about the outcome of the application. E. Situation of the applicant following the assault 27. The applicant claimed that following the violence suffered at the hands of her former partner, she lived in a state of constant anguish and fear of a recurrence of the violence against her and her children. She underwent psychological support therapy, as did her son P., who had witnessed the violence. 28. On an unspecified date the applicant turned for help to an association ( Associazione scaligera vittime di reato – ASAV ) that specialised in providing material, psychological and legal assistance to victims of crime. 29. The applicant visited her former partner five times during his imprisonment, which lasted from 18 November 2008 to 18 June 2010. 30. From the material submitted by the applicant, it appears that after J.C.N. was released he and the applicant resumed contact in the form of an exchange of emails. | The applicant complained that the authorities had failed to support her following the serious incident of domestic violence against her in November 2008 or to protect her from further violence. She alleged in particular that her former partner had not been obliged to have psychological treatment and continued to represent a threat to both her and her children. She further claimed that the reception centre chosen for his house arrest, situated just 15km from her home, had been inadequate, submitting that she had been intimidated twice by employees of the reception centre which was in breach of a court order prohibiting any form of contact with her former partner. Lastly, she alleged that these failings had been the result of the inadequacy of the legislative framework in Italy in the field of the fight against domestic violence, and that this discriminated against her as a woman. |
Subsets and Splits