id
int64 1
1.1k
| input_prefix
stringlengths 5
151
⌀ | input
stringlengths 354
187k
| output
stringlengths 38
1.6k
|
|---|---|---|---|
211 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE A. Introduction B. The first three applicants 1. The arrests and interviews 2. The trial of the first three applicants 3. The appeal of the first three applicants C. The case of the fourth applicant 1. The fourth applicant ’ s questioning by the police 2. The fourth applicant ’ s trial 3. The fourth applicant ’ s appeal | On 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene and a police investigation immediately commenced. The first three applicants were arrested on suspicion of having detonated three of the bombs. The fourth applicant was initially interviewed as a witness in respect of the attacks but it subsequently became apparent that he had assisted one of the bombers after the failed attack and, after he had made a written statement, he was also arrested. All four applicants were later convicted of criminal offences. The case concerned the temporary delay in providing the applicants with access to a lawyer, in respect of the first three applicants, after their arrests, and, as regards the fourth applicant, after the police had begun to suspect him of involvement in a criminal offence but prior to his arrest; and the admission at their subsequent trials of statements made in the absence of lawyers. |
529 | Conditions of reception | THE CIRCUMSTANCES OF THE CASE 11. The applicants were born in 1981, 1977, 1999, 2001, 2004, 2007 and 2011 respectively. The eldest daughter of the first and second applicants, S.M., died after the application had been lodged, on 18 December 2011. 12. The applicants have spent the greater part of their lives in Serbia. They left Serbia in 2010 for Kosovo and in February 2010 they went to France, where they lodged applications for asylum. The second applicant ’ s application was registered by the French Office for the Protection of Refugees and Stateless Persons (“the OFPRA”) on 10 May 2010 and the first applicant ’ s on 18 May 2010. On 4 June 2010 their applications were rejected on the grounds that they had not responded to the summons to appear before the OFPRA on 31 May 2010 and that their written statements, which were too vague, did not enable the OFPRA to grant their application. 13. According to the information provided by the applicants, they stayed in France for about two months, apparently in Mulhouse. They alleged that they had only been provided with night-time accommodation and had been obliged to leave the hostel in the mornings, taking their physically and mentally disabled daughter, S.M., in a pushchair. They submitted that they had left France before the OFPRA issued its decision and returned to Kosovo, and subsequently to Serbia, in May 2010. 14. In March 2011 they went to Belgium, where they lodged an asylum application on 1 April 2011. On the same day the Federal Agency for the reception of asylum seekers (Fedasil) assigned them a place in a reception facility, the Morlanwez asylum-seekers ’ reception centre. 15. On 4 April 2011 the applicants had an interview with the “Dublin” department of the Aliens Office during which they gave an account of their journey and their reasons for seeking asylum. 16. On 12 April 2011 the Belgian authorities sent France a request to take the applicants back under Council Regulation (EC) No. 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (“the Dublin II Regulation”). 17. Initially, France refused to take charge of the applicants on the grounds that they had probably left the territory of the Member States for more than three months, which was a ground for refusing to take them back under Article 16(3) of the Dublin II Regulation. After the Belgian authorities had reiterated their request, on 6 May 2011 the French authorities agreed to take the family back. They indicated that the transfer should be effected under escort to the border control post of Rekkem and asked to be given three days ’ notice of the transfer. 18. On 17 May 2011 the Aliens Office issued a decision refusing the applicants leave to remain and ordering them to leave the country for France within seven days (decision known as an “annex 26 quater ”, which is the name of the corresponding form) on the grounds that Belgium was not responsible for examining the asylum application under Article 16(1 )( e) of the Dublin II Regulation and that France had agreed to take the applicants back. The decision indicated that as the applicants had not expressed fears regarding the French authorities or adduced evidence of any traumatic experience in France and France was a country which respected human rights, was a signatory to many conventions and had independent courts to which the applicants could apply, Belgium did not have to take responsibility for the asylum application under Article 3(2) of the Dublin II Regulation. The applicants were issued with laissez-passer to enter France. 19. On 26 May 2011 execution of the order to leave the country was extended until 25 September 2011 on grounds of the second applicant ’ s pregnancy. 20. In May 2011 the applicants contacted a lawyer with a view to challenging the Dublin transfer decision. On 16 June 2011 they lodged an application with the Aliens Appeals Board through their lawyer seeking judicial review of the decision and an ordinary request for an order staying execution. They relied on a number of grounds, in particular the failure to mention any statutory basis for their transfer to France and their fears regarding the poor reception conditions they had experienced during their first stay in France and a possible transfer to Serbia, and adduced evidence that they had left the territory of the European Union for more than three months. 21. After the second applicant had given birth at the end of July, on 5 August 2011 the family was assigned a place in a new reception centre, in Saint-Trond, 66 km from Brussels. 22. The applicants appeared at the hearing on 26 August 2011 before the Aliens Appeals Board to examine their request for judicial review of the order to leave the country. 23. On 22 September 2011, relying on the state of health of their daughter S.M., they sought leave to remain on medical grounds under section 9 ter of the Aliens Act. Their application was declared inadmissible by the Aliens Office on 30 September 2011 on the grounds that the medical certificate produced in support of their application certified the existence of a medical condition and the treatment considered necessary but, contrary to the statutory requirements, did not specify the degree of seriousness of the young S.M ’ s illness. The applicants did not learn of that decision until much later, during the proceedings before the Court. 24. On the expiry of the time-limit granted in the order to leave the country the applicants were excluded from the Saint-Trond reception facility, which they left on 27 September 2011. They travelled to Brussels by train and went to Place Gaucheret, where other Roma families were staying. They spent a number of days there. 25. On 29 September 2011 the applicants ’ lawyer applied to the French ‑ speaking community ’ s General Delegate to the Rights of the Child seeking his assistance in finding accommodation for the family. On 5 October, after the General Delegate had contacted various institutions, the applicants were given a place in the Woluwe-Saint-Pierre transit centre in Brussels. 26. On 7 October 2011 Fedasil assigned them a reception centre in Bovigny 160 km from Brussels. The applicants were provided with train and bus tickets and directions to the reception centre. 27. The applicants submitted before the Court that they had gone to the Bovigny centre but had been refused entry on the grounds that their documents (their “annexes”) were not valid. The Government stated, for their part, that the applicants had been expected at the Bovigny centre but had failed to turn up. In the proceedings before the Grand Chamber the Government produced exchanges of correspondence between Fedasil and the employees at the centre indicating that a room with a baby ’ s cot had been prepared for the applicants, that a shuttle service from the station to the centre had been organised and that their place had been kept for them for several days before being reassigned. 28. The family then went to the Gare du Nord in Brussels where they stayed for over two weeks before accepting a voluntary return programme and returning to Serbia on 25 October 2011. 29. The first and second applicants ’ eldest daughter died there of a pulmonary infection on 18 December 2011. 30. In a judgment of 29 November 2011 the Aliens Appeals Board set aside the order to leave the country (see paragraph 18 above) on the grounds that the decision had not properly established the legal basis on which France had been designated as the responsible State. With regard to the risk of treatment contrary to Article 3 referred to by the applicants, the Aliens Appeals Board considered that such a risk had not been made out. It observed that the applicants had not drawn the administrative authority ’ s attention to any particular difficulties regarding the reception arrangements organised by the French authorities, particularly concerning access to medical care for their children, and that they had not submitted any evidence corroborating their allegations regarding the conditions of their accommodation. With regard to the general situation concerning reception arrangements in France, the Aliens Appeals Board observed that the applicants had not referred to circumstances of which the respondent had or ought to have had knowledge, the evidence submitted before it having been considered vague and incomplete. 31. The Belgian State lodged an appeal on points of law with the Conseil d ’ État. The appeal was initially declared admissible, but ultimately declared inadmissible on 28 February 2013 on grounds of the State ’ s lack of interest in appealing given that the applicants had left Belgian territory more than three months ago and Belgium was no longer responsible for determining the State responsible under the Dublin II Regulation. | This case concerned the reception conditions of a family of Serbian nationals of Roma origin seeking asylum in Belgium. The applicants alleged in particular that they had been subjected to inhuman and degrading living conditions in Belgium that had, inter alia, caused the death of their eldest daughter. |
260 | Death penalty as a result of unfair trial | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, a Turkish national, was born in 1949 and is currently being held in İmralı Prison. 6. The facts of the case up to 12 May 2005 were presented by the Court in the Öcalan v. Turkey judgment ([GC], no. 46221/99, ECHR 2005 ‑ IV). They may be summarised as follows. 7. On 15 February 1999 the applicant was arrested by members of the Turkish security forces in an aircraft in the international area of Nairobi airport. The applicant was returned to Turkey from Kenya and taken into custody at İmralı Prison on 16 February 1999. The inmates at this prison had meanwhile been transferred to other prisons. 8. On 23 February 1999 the applicant appeared before a judge of the Ankara National Security Court, who ordered that he should be detained pending trial. A. The trial 9. By a judgment of 29 June 1999, the Ankara National Security Court found the applicant guilty of carrying out acts designed to bring about the secession of part of Turkey ’ s territory and of training and leading a gang of armed terrorists for that purpose, and sentenced him to death under Article 125 of the Criminal Code. It found that the applicant was the founder and principal leader of an illegal organisation, namely the PKK ( the Workers ’ Party of Kurdistan – hereafter “ the PKK ” ). The National Security Court found that it had been established that, following decisions taken by the applicant and on his orders and instructions, the PKK had carried out several armed attacks, bomb attacks, acts of sabotage and armed robberies, and that in the course of those acts of violence thousands of civilians, soldiers, police officers, village guards and public servants had been killed. The court reiterated that the applicant had acknowledged that the Turkish Government ’ s estimate of the number of those killed (almost 30, 000) or wounded as a result of the PKK ’ s activities was fairly accurate, that the actual number might even be higher, and that he had ordered the attacks as part of the armed struggle being waged by the PKK. The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment, having regard, among other things, to the very large number and the seriousness of the acts of violence and the major, pressing threat to the country that those acts posed. 10. By a judgment adopted on 22 November 1999 and delivered on 25 November 1999, the Court of Cassation upheld the judgment of 29 June 1999 in its entirety. 11. In October 2001 Article 38 of the Constitution was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war, or for acts of terrorism. By Law no. 4771, published on 9 August 2002, the Turkish Grand National Assembly resolved, inter alia, to abolish the death penalty in peacetime (that is to say except in time of war or of imminent threat of war) and to make the necessary amendments to the relevant legislation, including the Criminal Code. As a result of the amendments, a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison. 12. By a judgment of 3 October 2002, the Ankara National Security Court commuted the applicant ’ s death sentence to life imprisonment. 13. On 20 February 2006 Turkey ratified Protocol No. 13 concerning the abolition of the death penalty in all circumstances. B. Conditions of detention after 12 May 2005 1. Conditions of detention in İmralı Prison 14. The applicant ’ s conditions of detention in İmralı Prison before 12 May 2005 are described in the judgment of the same date ( see Öcalan, cited above, §§ 192-196). 15. Furthermore, the applicant was the sole inmate of İmralı Prison until 17 November 2009, when five further individuals were transferred to it; all the prisoners, including the applicant, were then housed in a new block which had just been built. 16. In May 2007 and January 2010, that is to say after the Court ’ s judgment of 12 May 2005, delegations from the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) visited İmralı Prison. ( a) Before 17 November 2009 17. Before 17 November 2009 the cell which the applicant occupied alone measured approximately 13 sq. m, and was equipped with a bed, a table, a chair and a shelf. The cell was air- conditioned and had a partially partitioned sanitary annex. There was a window overlooking an enclosed yard and the cell had adequate access to natural light and adequate artificial lighting. In February 2004 the walls had been reinforced with chipboard panels to protect them against the damp. 18. The time granted to the applicant to leave his cell and use the exercise yard ( measuring approximately 45 sq. m ), which is walled in and covered with mesh, was limited to one hour daily ( divided into two 30-minute periods, one in the morning and the other in the afternoon ). 19. The applicant was not in sensory isolation or solitary confinement. As he was the only inmate of the prison, his only contacts were with the members of staff working there, who were only allowed to talk to him about subjects falling within the scope of their duties and relating to everyday life in the prison. 20. The applicant had access to books and a radio which could only receive State broadcasts. He was not allowed to have a television set in his cell on the grounds that he was a dangerous prisoner and a member of an illegal organisation, and was prone to commit recurrent disciplinary offences. Nor was he given access to a telephone, for the same reasons. 21. The applicant, who had restricted access to daily and weekly newspapers, was allowed a maximum of three papers in his cell at any one time. The newspapers were often several days old. In fact, he received them once a week, from his family or his lawyers. In the absence of visits from family members and lawyers ( owing to the inaccessibility of the island ), the applicant often spent long periods without access to recent newspapers. Those papers which he did receive had always been extensively censored. 22. The applicant was allowed to correspond with the outside world under the supervision of the prison authorities. The mail which he received was verified and censored. Correspondence with the outside was occasionally interrupted. 23. The applicant remained in the same cell from the date of his transfer to İmralı Prison – after his arrest on 16 February 1999 – until 17 November 2009, that is to say for almost ten years nine months. ( b) Since 17 November 2009 24. In order to comply with the requests put forward by the CPT and put an end to the applicant ’ s relative social isolation, the governmental authorities built a number of new blocks inside the grounds of İmralı Prison. On 17 November 2009 the applicant and five other inmates transferred from other prisons were moved to these new facilities. 25. Since that date the applicant has been on his own in a cell with an area of 9. 8 sq. m ( living space), with a further 2 sq. m of sanitary facilities, comprising a bed, a small table, two chairs, a metal cupboard and a kitchenette with a washbasin. The building containing the cells is properly damp-proofed. According to the CPT, although the applicant ’ s cell has a 1 m x 0. 5 m window and a partly glazed door, both opening on to an enclosed yard, it has insufficient direct sunlight because of the 6 - m -high wall surrounding the yard. The CPT ’ s proposal to lower the wall has not yet been accepted by the Government, whose experts have certified that the cell receives enough natural light. 26. The prison is equipped with a sports room with a ping ‑ pong table and two other rooms with chairs and tables, all three rooms enjoying plentiful natural daylight. Every inmate, including the applicant, has two hours of outdoors exercise every day alone in the exercise yard reserved for each cell. Moreover, all the prisoners can spend one hour per week alone in a recreation room ( where no specific activities are on offer ) and two hours per month alone in the prison library. Furthermore, every prisoner takes part in collective activities, including one hour ’ s conversation per week with the other prisoners. 27. Following its visit in January 2010 the CPT observed that the prison regime applied to the applicant was only a very modest step in the right direction, particularly as compared to the regime applied in the other F-type prisons for the same category of convicted prisoners, who could engage in outdoor activities all day long, with non-supervised collective activities with the other prisoners for between three and seven days a week. 28. In the light of these observations, the authorities responsible for İmralı Prison undertook to relax the regime in question, so that the İmralı inmates, including the applicant, can now engage alone in out-of-cell activities for four hours per day, receive newspapers twice (instead of once) a week and spend three hours (instead of one) per week together to talk to each other. All the İmralı inmates can engage, for one hour per week, in any of the following collective activities : painting and handicraft activities, table tennis, chess, volleyball and basketball. According to the prison registers, the applicant in fact plays volleyball and basketball but does not take part in the other activities. The prison authorities also informed the CPT that they were considering providing inmates with two hours per week of additional collective activities ( painting/ handicraft, board games and sport). The applicant therefore apparently spends a great deal of time outside his cell, that is to say, depending on his choice of collective activity, up to a maximum of 38 hours per week, including a maximum of ten hours in the company of the other prisoners. 29. Since 20 March 2010, in the wake of new technical arrangements, the applicant, like the other İmralı inmates, has been allowed ten minutes ’ telephone calls to the outside every fortnight. 30. In its report of 9 July 2010 the CPT recommended that the Government should ensure that the applicant could accompany the other inmates for outdoor activities, and that he and the other prisoners could spend a reasonable part of the day ( eight hours or more ) outside their cells, engaged in purposeful activities of a varied nature. The CPT also recommended allowing the applicant to have a television set in his cell, like all other persons held in high- security prisons. The prison authorities did not act on these latter recommendations on the grounds that the applicant still held dangerous prisoner status and failed to comply with the prison rules, particularly during visits by his lawyers. On 12 January 2012 the applicant was supplied with a television set. 2. Restrictions to visits by the applicant ’ s lawyers and relatives ( a) Visit frequency 31. The applicant has received many visits from his lawyers and relatives, but not as many as he and his visitors would have liked, mainly because of “ poor weather conditions ”, “ maintenance work on the ferry boats between the island and the mainland ” and “ the inability of the boats to cope with prevailing weather conditions ”. 32. In fact, the old ferry boat İmralı 9 was still in service but could only sail when there was little wind. The larger ferry boat, Tuzla, which the Government had promised when the previous Öcalan case was pending before the Grand Chamber of the Court, began operating in 2006. The Tuzla, being better suited than the İmralı 9 to difficult weather conditions, provides more frequent crossings between İmralı Island and the mainland. It sometimes suffers technical breakdowns, entailing repairs which sometimes take several weeks. 33. As regards visits, between March and September 2006, for example, twenty-one out of thirty-one requests for visits were refused. These refusals continued into October 2006, with five out of six requests being refused, and November 2006, with six out of ten requests refused. After a brief improvement in December 2006 ( one out of six requests refused ), January 2007 ( two out of six requests refused ) and February 2007 ( all four requests granted ), visit frequency once again dropped off in March 2007 (six out of eight requests refused ) and April 2007 ( four out of five requests refused ), picking up again in May 2007 ( one out of five requests refused ) and June 2007 ( one out of four requests refused ). The number of family visits totalled 14 in 2005, 13 in 2006 and seven in 2007. In fact, between 16 February 1999 and September 2007, the applicant received 126 visits from his brothers and sisters and 675 from his lawyers or advisers. 34. For the remainder of 2007 and in 2008, 2009 and, broadly speaking, 2010, the frequency of visits by lawyers and members of the applicant ’ s family regularly increased. In 2009, for example, forty-two visits out of the fifty-two requested took place on the scheduled date or the day after ( because of unfavourable weather conditions). 35. In 2011 and 2012 the ratio of refusals to requests increased significantly. In 2011, for example, the applicant only received two family visits out of the six requested. Again in 2011, he only received twenty-three of the sixty -seven requested visits by his lawyers. Three lawyers ’ visits took place in January, two in February, five in March, three in April, four in May, four in June and two in July 2011. Between August and December 2011 the applicant received no visits apart from one family visit on 12 October 2011, with thirty-three refusals. The prison authorities explained their refusals by poor weather conditions and ferry breakdowns. In 2012 the applicant received a few visits from his brother, and none from his lawyers. ( b) Visits by lawyers 36. As a general rule, persons in prison in Turkey can talk to their lawyers on working days, during working hours, without any restrictions as regards frequency over any given period. Since İmralı Island is only accessible by means of the shuttle boat provided by the İmralı Prison administration, the applicant ’ s lawyers ’ visits, in practice, always took place on a Wednesday, the day of the crossing. i. Procedure during visits by the applicant ’ s lawyers 37. As a general rule, prisoners can communicate with their lawyers completely confidentially, without supervision. On 1 June 2005, however, Law no. 5275 on the enforcement of sentences and preventive measures came into force, replacing the previous legislation on this matter. Under section 59 of the new Law, if it emerges from documents and other evidence that visits by lawyers to a person convicted of organised crime are serving as a means of communication within the criminal organisation in question, the post-sentencing judge may, at the request of the prosecution, impose the following measures: presence of an official when the convicted prisoner is talking to his lawyers, verification of documents exchanged between the prisoner and his lawyers during such visits, and /or confiscation of all or some of these documents by the judge. 38. On 1 June 2005 the applicant was visited by his lawyers. Just before the interview the prison authorities communicated to the applicant and his lawyers a decision by the Bursa post- sentencing judge applying section 59 of Law no. 5275 to that visit. An officer was therefore present during the interview, the conversation between the applicant and his lawyers was tape-recorded and the documents supplied by the lawyers were submitted to the judge for examination. 39. In order to protest against the new procedure, the applicant interrupted the interview after a quarter of an hour and asked his lawyers to pay no further visits to him until the said procedure had been revoked. He informed the prison authorities that the procedure infringed the confidentiality of the interview between the lawyers and their client and “ rendered the visit and the interview pointless in terms of preparing his defence ”. 40. During subsequent visits an official was in attendance during interviews. Moreover, the conversation between the applicant and his lawyers was again tape-recorded and submitted to the post-sentencing judge for examination. 41. The applicant ’ s lawyers also lodged an appeal with the Bursa Assize Court against the Bursa post-sentencing judge ’ s decision ordering attendance by an officer during interviews and the recording of the conversations. By decisions of 27 April and 9 June 2006, the Assize Court dismissed the appeal on the grounds that the impugned measures were geared to preventing the transmission of orders within a terrorist organisation, that they did not affect the applicant ’ s defence rights and that in any case the transcription of the conversations showed that they had not concerned the applicant ’ s defence in any set of proceedings but the internal functioning of the PKK and the strategy to be adopted by this illegal organisation. 42. During the lawyers ’ visit on 29 March 2006, one of the officers present in the room in which the interview was taking place interrupted the conversation on the ground that it was not confined to preparing the applicant ’ s defence before a judicial authority. The applicant ’ s lawyers filed a complaint against the officer in question for abuse of office. On 21 April 2006 the Bursa public prosecutor ’ s office issued a decision not to prosecute. ii. Content of the exchanges between the applicant and his lawyers 43. It appears from the records of the lawyers ’ visits that the conversations very often began with a statement by the lawyers on recent developments concerning the PKK. The applicant consulted his lawyers on changes of persons at the different structural levels of the organisation, the various activities and meetings organised by the PKK bodies (at regional and national levels, and also abroad ), the political line adopted by the party leaders, competition among the leaders and losses sustained by armed militants in combating the security forces. The applicant, who presented himself as “the leader of the Kurdish people ”, commentated all the information provided by his lawyers and mandated them to transmit his ideas and instructions with a view to reshaping the PKK ’ s policies in Turkey (he broadly advocated recognising the rights of the Kurdish minority in a completely democratic Turkey) or in other countries. Moreover, he approved or rejected executive appointments to the various PKK bodies and advised on the party ’ s internal organisation. He also recommended that the PKK lay down its weapons when the Government had ended hostilities and the PKK ’ s demands had been met. 44. At the request of the Bursa public prosecutor, the Bursa post-sentencing judge several times refused to hand over copies of the records to the applicant and his lawyers on the grounds that they contained direct or indirect instructions by the applicant to the PKK, which used them to reshape its strategy and tactics. 45. Since May 2005 the applicant had remained actively involved in the political debate in Turkey on the PKK armed separatist movement, which identified him as its main representative, and his instructions as transmitted through his lawyers had been closely monitored by the general public, prompting a variety of reactions, some of which had been very extreme. A section of the Turkish population considered him as the most dangerous terrorist in the country, who was still active even in prison. His supporters saw him as their leader and the ultimate head of the separatist movement. The applicant also stated that he had taken part in negotiations with certain State officials with an eye to resolving the problems posed by the armed separatist movement, but that most of his calls for the discontinuation of the armed conflict had been heard neither by the Government nor by his armed movement. iii. Examples of disciplinary sanctions imposed on the applicant by reason of his conversations with his lawyers 46. The applicant was placed in solitary confinement on the ground that he had transmitted instructions to the organisation of which he was the leader during his lawyers ’ visits on the following dates : 30 November 2005, 12 July and 27 September 2006, 4 April, 4 July and 7 November 2007, 9 April and 14 May 2008, and 2 January and 4 November 2009. 47. Therefore, according to the tape recording of the conversation of 30 November 2005 between the applicant and his lawyers, the applicant told his legal representatives how he considered that PKK members could invite citizens of Kurdish origin to demonstrate in order to demand the right to education in the Kurdish language. 48. On 12 December 2005 the İmralı Prison disciplinary board, considering that the applicant ’ s words corresponded to “ training and propaganda activities within a criminal organisation ”, sentenced the applicant to 20 days ’ solitary confinement. Pursuant to this sanction, the prison administration removed all the applicant ’ s books and newspapers for twenty days. 49. The applicant ’ s appeal against this disciplinary measure was dismissed on 22 December 2005 by the Bursa post-sentencing judge on the grounds that the applicant had incited women and children to organise illegal demonstrations, thus carrying out what might be described as training and propaganda activities within a criminal organisation. 50. On 7 February 2006 the Bursa Assize Court dismissed the appeal lodged by the applicant ’ s lawyers against the decision of 22 December 2005. The Assize Court considered that the impugned decision was in conformity with the law. 51. The applicant was subjected to a further sanction of 20 days ’ solitary confinement on the ground of a conversation with his lawyers which had taken place on 12 July 2006. His appeals against this decision having been dismissed, he served this sentence from 18 August to 7 September 2006. The applicant ’ s lawyers were not apprised of this sanction until 23 August 2006, when a request for a visit to the applicant was rejected. ( c) Visits by members of the applicant ’ s family 52. Visits by relatives of the applicant ( in practice, his brothers and sisters ) are limited to one hour every fortnight. These visits originally took place in a visiting room comprising a barrier to separate the prisoner from his visitors, as the visiting areas where the prisoner and his visitors could sit together at a table were reserved for relatives of the first degree under Rule 14 of the Rules on visits to prisoners and detainees. On 2 December 2009 the State Council annulled this provision. Without waiting for this decision to become final, the İmralı Prison Governing Board granted the applicant the right to see his brothers and sisters unseparated by any barrier. On 26 July 2010, therefore, the applicant was able to meet his brother “ around a table” for the first time. 53. Where a visit is cancelled owing to weather conditions, the authorities can organise another visit a few days later, at the family ’ s request. In practice, Wednesday visits which are cancelled are not replaced because the visitors have never requested such replacement. 54. Furthermore, visits by family members have not been as frequent as the applicant and his relatives would have wished because of the inadequacy of the available means of transport under unfavourable weather conditions. Almost half of all the visits requested have been rejected owing to shuttle boat breakdowns or poor weather conditions. 3. Proceedings brought against some of the applicant ’ s lawyers ( a) Ban on some lawyers representing the applicant 55. Article 151/3-4 of the new version of the Code of Criminal Procedure, which came into force on 1 June 2005, provides that lawyers who have been prosecuted for crimes linked to terrorism may be banned from representing persons convicted of terrorist activities. This provision is intended to prevent leaders of terrorist organisations who have been convicted from continuing to lead their organisations from their place of incarceration through the intermediary of their lawyers. 56. By a decision of 6 June 2005, the Istanbul prosecutor ’ s office invited the Istanbul Assize Court to apply this measure to some of the applicant ’ s lawyers. 57. By a decision of 7 June 2005, the 9 th Assize Court deprived twelve lawyers of their status as counsel to the applicant for a period of one year. 58. On 20 June 2005, the 10 th Assize Court of Istanbul dismissed the applicant ’ s appeal against that decision. ( b) Prosecution of some of the applicant ’ s lawyers for acting as messengers between him and his former armed organisation 59. On 23 November 2011, on instructions from the Istanbul public prosecutor ’ s office, the law enforcement agencies arrested and took into custody 36 lawyers representing the applicant in 16 Turkish departments (including six lawyers representing the applicant before the Court ), searched their offices and seized all the documents relating to the applicant. The prosecution suspected the lawyers in question of having acted as messengers between the applicant and the other PKK leaders. 4. Alleged poisoning of the applicant 60. By a letter of 7 March 2007 the applicant ’ s representatives informed the Court that they had asked a Strasbourg medical laboratory to analyse six hairs which they considered to be from the applicant and that the analyses carried out on 5 February 2007 demonstrated the presence of abnormally high doses of chromium and strontium. 61. However, analyses of samples taken directly from the applicant at the prison failed to disclose any trace of toxic elements or elements endangering health. ... | Abdullah Öcalan is a Turkish national serving a life sentence in a Turkish prison. Prior to his arrest, he was the leader of the PKK (the Workers’ Party of Kurdistan, an illegal organisation). Apprehended in Kenya in disputed circumstances on the evening of 15 February 1999, he was flown to Turkey where he was sentenced to death in June 1999 for actions aimed at bringing about the separation of the Turkish territory. Following the August 2002 abolition in Turkish law of the death penalty in peace time, the Ankara State Security Court commuted – in October 2002 – the applicant’s death sentence to life imprisonment. He complained about the imposition and/or execution of the death penalty in his regard. |
497 | Entitlement to social security benefits | I. THE CIRCUMSTANCES OF THE CASE 14. The facts of the case, as submitted by the parties, may be summarised as follows. A. Mrs Stec 15. On 18 January 1989 Mrs Stec injured her back at work and was unable to continue working. She was awarded Reduced Earnings Allowance ( REA – see paragraph 2 6 below) from 24 January 1990. On 13 March 1993 she reached the age of 60 and as from 31 March 1996 her award of REA was replaced by an award of Retirement Allowance ( RA – see paragraph 30 below). 16. The applicant appealed against this decision on the ground of sex discrimination to the Trent Social Security Appeals Tribunal ( SSAT ), which allowed her appeal on 4 October 1996, and the adjudication officer subsequently appealed to the Social Security Commissioner (“the Commissioner”). 17. The Commissioner joined Mrs Stec ’ s case to those of the other three present applicants, and also to that of Mrs Hepple. Having heard arguments on 11 and 12 December 19 9 7, the Commissioner decided on 8 May 1998 to refer the following questions to the European Court of Justice (ECJ ): “1. Does Article 7 of Council Directive 79/7/EEC permit a member State to impose unequal age conditions linked to the different pension ages for men and women under its statutory old-age pension scheme, on entitlement to a benefit having the characteristics of Reduced Earnings Allowance under a statutory occupational accident and disease scheme, so as to produce different weekly cash payments under that scheme for men and women in otherwise similar circumstances, in particular where the inequality: (a) is not necessary for any financial reason connected with either scheme; and (b) never having been imposed before, is imposed for the first time many years after the inception of the two schemes and also after 23 December 1984, the latest date for the Directive to be given full effect under Article 8? 2. If the answer to Question 1 is Yes, what are the considerations that determine whether unequal age conditions such as those imposed in Great Britain for Reduced Earnings Allowance from 1988 to 1989 onwards are necessary to ensure coherence between schemes or otherwise fall within the permitted exclusion in Article 7? 3. ... ” 18. In his order of reference the Commissioner observed: “On the main issue, it is apparent from the information before me (and the adjudication officers so concede) that the imposition after 1986 of unequal age conditions on REA for the first time was not necessary to maintain the financial equilibrium or coherence (in so far as that word is understood in a financial sense) of the UK social security schemes. It is also apparent (and on the information before me I so decide as a fact) that such imposition was not necessary to enable the United Kingdom to retain the different pension ages under its old-age scheme. That difference had coexisted with the Industrial Injuries Scheme ... for nearly 40 years from 1948 without it, and REA could simply have been left as it was, or a non-discriminatory cut-off age adopted, without upsetting the pension system as it had always operated. The real question therefore is the more difficult one of whether a government which considers it a costly anomaly to go on paying a benefit such as REA to people too old to work is permitted to impose a new cut-off at unequal ages, claiming the benefit of the exclusion in Article 7 for the ‘ possible consequences for other benefits ’ having regard to what was said in the [ECJ ’ s] judgment in Graham, on the ground that the ages selected are the same as those for the pension, and ... the government take the view as a matter of policy that the income-replacement functions of REA should be performed after pension age by the pension, plus the very much smaller ‘ Retirement Allowance ’ instead.” 19. The ECJ gave judgment on 23 May 2000 (see paragraph 4 1 below). On 31 July 2000 the Commissioner, following the ECJ ’ s ruling, struck out the applicants ’ cases where they were the appellants before him and allowed the appeals where the adjudication officers had been the appellants. B. Mr Lunn 20. On 11 November 1973 Mr Lunn suffered a work-related injury to his right hand, as a result of which he had to stop working. From 12 May 1974 he received Special Hardship Allowance, which was converted to REA from 1 October 1986. On 19 May 1988 he reached the age of 65 and from May 1993, when he turned 70, he received a statutory retirement pension. On 26 March 1996 an adjudication officer reviewed the award of REA and decided that, with effect from 31 March 1996, it should be replaced by an award of RA, paid at approximately 25% of the REA rate. 21. The applicant appealed on the ground that a woman in the same circumstances would have been treated as having retired on or before 19 May 1988 and would have been entitled to a frozen rate of REA for life, a more valuable benefit. On 24 September 1996 the Stockport SSAT dismissed his appeal, and Mr Lunn appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-1 9 above). C. Mrs Spencer 22. Mrs Spencer suffered a work-related injury to her neck on 17 July 1966. She was awarded Special Hardship Allowance from 15 January 1967 and from 1 October 1986 this was converted to an award of REA. Her sixtieth birthday was on 11 December 1986 and she received a retirement pension from 23 December 1986. It was decided on 10 May 1993, with effect from 11 April 1988, to freeze for life her award of REA at 25.28 pounds sterling (GBP) per week. 23. The applicant appealed to the Bolton SSAT on the ground that, had she been a man, she would have continued to receive unfrozen REA. The SSAT allowed her appeal on 30 November 1994, and the adjudication officer appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-1 9 above). D. Mr Kimber 24. On 12 March 1982 Mr Kimber injured his back at work and was unable to continue working. He was awarded Special Hardship Allowance from 15 September 1982, converted to REA from 1 October 1986. He reached the age of 65 on 30 September 1989 and received a retirement pension from 29 September 1994. On 29 April 1996 an adjudication officer reviewed his award of REA and decided that with effect from 31 March 1996 it should be replaced by an award of RA. 25. The applicant appealed to the Eastbourne SSAT, on the ground that a woman in his circumstances could have chosen to have been treated as retired from 10 April 1989, and so would have been entitled to frozen REA for life, a more valuable benefit than RA. The SSAT allowed his appeal on 2 October 1996 and the adjudication officer appealed to the Commissioner, who referred the case to the ECJ (see paragraphs 17-1 9 above). | The applicants in this case, two men and two women, complained that they had suffered sex discrimination in eligibility for reduced earnings allowance8 (REA) as a result of changes to the REA scheme linking it to State pensionable age9. For all applicants, this resulted in various ways in a drop in income that would have been spared them had they been of the sex opposite to theirs and hence subject to the other pensionable age. |
846 | null | 10. The applicant, Centrum för rättvisa, is a foundation established in 2002. It has its headquarters in Stockholm. 11. The applicant represents clients in proceedings concerning rights and freedoms under the Convention or related proceedings under Swedish law. It is also involved in education and research projects and participates in the general public debate on issues concerning individuals’ rights and freedoms. 12. The applicant communicates on a daily basis with individuals, organisations and companies in Sweden and abroad by email, telephone and fax. It asserts that a large part of that communication is particularly sensitive from a privacy perspective. Due to the nature of its function as a non-governmental organisation scrutinising the activities of State actors, it believes that there is a risk that its communications have been or will be intercepted and examined by way of signals intelligence. 13. The applicant has not brought any domestic proceedings, contending that there is no effective remedy for its Convention complaints. | This case concerned the alleged risk that the applicant foundation’s communications had been or would be intercepted and examined by way of signals intelligence, as it communicated on a daily basis with individuals, organisations and companies in Sweden and abroad by email, telephone and fax, often on sensitive matters. |
849 | GPS data | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1967 and lives in Mönchengladbach. A. Background to the case 6. In spring 1993 the North Rhine-Westphalia Department for the Protection of the Constitution ( Verfassungsschutz ) started a long-term observation of the applicant. The latter was suspected of participation in offences committed by the so-called Anti-Imperialist Cell ( Antiimperialistische Zelle ), an organisation which was pursuing the armed combat abandoned since 1992 by the Red Army Fraction ( Rote Armee Fraktion ), a left-wing extremist terrorist movement. 7. As a consequence, the applicant was occasionally kept under visual surveillance by staff members of the Department for the Protection of the Constitution and the entries to his flats were filmed by video cameras. The Department also intercepted the telephones in the house in which the applicant lived with his mother ( from 26 April 1993 to 4 April 1996) and in a telephone box situated nearby ( from 11 January 1995 until 25 February 1996). Moreover, post addressed to him was opened and checked (from 29 April 1993 to 29 March 1996). 8. Likewise, S., a presumed accomplice of the applicant, was subjected to surveillance measures from 1993. The Hamburg Office for the Protection of the Constitution intercepted telecommunications from the phone in his parents'house as well as his post. Moreover, staff members of the Office occasionally observed him. 9. In October 1995 the Federal Public Prosecutor General instituted investigatory proceedings against the applicant and S. for participation in bomb attacks for which the Anti-Imperialist Cell had claimed responsibility. The Federal Office for Criminal Investigations was in charge of the investigations. 10. Following this, the applicant and S. were kept under visual surveillance by civil servants of the Federal Office for Criminal Investigation, essentially during the weekends between 30 September 1995 and their arrest on 25 February 1996. Moreover, the entry of the house in which the applicant was living with his mother was observed by means of an additional video camera installed by the Federal Office for Criminal Investigations (from October 1995 to February 1996). The telephones in that house, in a telephone box situated nearby and in S.'s flat in Hamburg were tapped by order of the investigating judge at the Federal Court of Justice (13 October 1995 to 27 February 1996). That judge further ordered observation by the police of the applicant and S. as well as of the cars used by them. The Federal Office for Criminal Investigations also observed the entry of S.'s apartment by means of video cameras (October 1995 to February 1996). Moreover, it intercepted the professional radio communication used by S. 11. In October 1995 the Federal Office for Criminal Investigations further installed two transmitters ( Peilsender ) in S.'s car, which the applicant and S. often used together. However, the applicant and S. detected and destroyed the transmitters. As they suspected that their telecommunications were being intercepted and that they were being observed, they never spoke to each other on the phone and succeeded on many occasions in evading visual surveillance by the investigation authorities. 12. In view of this, the Federal Office for Criminal Investigation built a Global Positioning System (GPS) receiver into S.'s car in December 1995 by order of the Federal Public Prosecutor General. Thereby it could determine the location and the speed of the car once per minute. However, the data were only recovered every other day in order to prevent detection of the receiver. This observation lasted until the applicant's and S.'s arrest on 25 February 1996. 13. GPS is a radio navigation system working with the help of satellites. It allows the continuous location, without lapse of time, of objects equipped with a GPS receiver anywhere on earth, with a maximum tolerance of 50 metres at the time. It does not comprise any visual or acoustical surveillance. As opposed to transmitters, its use does not necessitate the knowledge of where approximately the person to be located can be found. B. The proceedings before the Düsseldorf Court of Appeal 14. In the criminal trial opened against the applicant and S., the Düsseldorf Court of Appeal, by a decision of 12 December 1997, dismissed the applicant's objection to the use as evidence of the results obtained by his surveillance with the help of GPS. It found that Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure (see paragraph 29 below) authorised the use of GPS in the instant case. The reliable information thus collected could therefore be used at trial. This information was confirmed by the evidence obtained by the – legal – video and personal surveillance of the defendants. Moreover, contrary to the applicant's submission, the use of GPS did not require a court order because it had been aggregated with other, legal, methods of surveillance. According to the Code of Criminal Procedure, surveillance via GPS did not have to be ordered by a judge, as opposed to measures interfering more profoundly with the right to self-determination in the sphere of information ( Recht auf informationelle Selbstbestimmung ). Whether or not a surveillance measure could be ordered in addition to measures already in place was a question of proportionality of the additional measure in question. 15. On 1 September 1999 the Düsseldorf Court of Appeal convicted the applicant, inter alia, of attempted murder and of four counts of causing an explosion and sentenced him to thirteen years'imprisonment. It found that the applicant and S., who had been the only members of the so-called Anti ‑ Imperialist Cell since spring 1995, had placed bombs in front of the houses of members or former members of Parliament and in front of the Peruvian Honorary Consulate between January and December 1995. 16. The Court of Appeal noted that the applicant had availed himself of his right to remain silent when faced with the charges and that S. had admitted taking part in the bomb attacks only in general terms, without giving any details. However, circumstantial evidence obtained in the course of the surveillance measures taken against them proved that they had committed the offences of which they had been found guilty. 17. In particular, the Court of Appeal found that for the bomb attack carried out following the GPS surveillance of S.'s car, it had been shown that the car had been parked close to the scene of the crime on the day the offence was committed and on a few days prior to it. Moreover, the car had been located close to the places where the defendants had photocopied, hidden and later posted letters claiming responsibility for the offence and close to sites in forests where the investigating authorities later found hiding places with material necessary for the construction of the bomb. This evidence was corroborated by information obtained by other methods of surveillance, in particular, the video surveillance of the entry of the applicant's home and the visual surveillance of the defendants by staff of the Federal Office for Criminal Investigations. The defendants'participation in the bomb attacks prior to their surveillance with the help of the GPS was proved by the similar execution of the offences as well as the information obtained by the video surveillance of their homes and the interception of telecommunications. C. The proceedings before the Federal Court of Justice 18. In an appeal on points of law the applicant complained, in particular, about the use as evidence at trial of the information obtained by his allegedly illegal surveillance notably with the help of GPS. 19. By a judgment of 24 January 2001 the Federal Court of Justice dismissed the applicant's appeal on points of law as ill-founded. It found that the collection of data by GPS had a legal basis, namely Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. Therefore, the information obtained in this manner could be used in the criminal proceedings against the applicant. 20. In particular, the use of technical locating devices such as the GPS did not interfere with the applicant's home. As the applicant was suspected of offences of considerable gravity, namely participation in bomb attacks committed by a terrorist organisation, the use of GPS was a proportionate interference with his right to respect for his private life (as protected also by Article 8 of the Convention) and his right to self-determination in the sphere of information. Other methods of investigation would have had less prospect of success, as the applicant and S. had often succeeded in evading other measures of observation. 21. Endorsing the reasons given by the Court of Appeal, the Federal Court of Justice further found that the aggregation of several measures of investigation did not necessitate an additional legal basis or make a court order necessary. However, the investigating authorities had to examine whether ordering another measure of surveillance in addition to the measures which were already being taken was still proportionate. In any event, there had not been a total surveillance of the applicant, which alone could violate the principle of proportionality and a person's right to privacy and could raise the issue of exclusion of evidence obtained in this manner from criminal proceedings. 22. The Federal Court of Justice conceded that following a change in the law in the year 2000, Article 163f § 4 of the Code of Criminal Procedure (see paragraph 32 below) provided that any long-term observation lasting for more than one month had to be ordered by a judge, irrespective of whether or not technical means of surveillance were used. The need for a court order did not, however, previously emanate from the Code of Criminal Procedure, constitutional law or Article 8 of the Convention. D. The proceedings before the Federal Constitutional Court 23. The applicant subsequently lodged a complaint with the Federal Constitutional Court. He claimed, in particular, that his surveillance by the North Rhine-Westphalia and Hamburg Offices for the Protection of the Constitution and by the Federal Office for Criminal Investigations from October 1995 until February 1996 and the judgments of the Court of Appeal and the Federal Court of Justice had infringed his right to privacy. Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure could not be considered a sufficiently precise legal basis for his surveillance with the help of GPS. There was no effective judicial control of this measure and the use of several means of surveillance at the same time would have necessitated a separate basis in law. Moreover, the use at trial of the information obtained by the said measures without a basis in law had infringed his right to a fair hearing. 24. On 12 April 2005 the Federal Constitutional Court, having held a hearing, dismissed the applicant's constitutional complaint (file no. 2 BvR 581/01). It found that his complaint was ill-founded in so far as he had complained about the use in the proceedings of evidence obtained by his observation via GPS in addition to other surveillance measures and that these measures were illegal. 25. The surveillance of the applicant with the help of GPS could be based on Article 100c § 1 no. 1 (b) of the Code of Criminal Procedure. That provision was constitutional. In particular, the term “special technical means intended for the purpose of surveillance” was sufficiently precise. As opposed to visual or acoustic surveillance, it comprised the location and determination of the whereabouts of a person by observing him or her by technical means such as GPS. The legislator was not obliged to formulate the methods of surveillance in a manner excluding the use of new forensic techniques. However, there was a risk of infringement of the right to self ‑ determination in the sphere of information, that is, the right of the individual to determine the use of data on him or her. Therefore, the legislator had to observe technical progress and, if necessary, safeguard the respect of fundamental rights by the investigating authorities with additional legislative provisions. 26. Moreover, the measure did not disproportionately interfere with the applicant's right to privacy. His surveillance did not destroy the essence of his private life. On the contrary, such surveillance by technical means could in some cases make more serious interferences, such as the interception of communications, unnecessary. Therefore, it was not disproportionate to order the surveillance measure if there was only an initial suspicion of an offence (of considerable gravity) and if other methods of investigation had less prospect of success. Furthermore, the legislator had not been obliged to set up additional safeguards for long-term surveillance – which he later did by adopting Article 163f § 4 of the Code of Criminal Procedure – but could first observe the factual developments in this field. 27. Neither did the legislator have the duty to regulate the use of several surveillance measures at once. Full surveillance of a person by which an exhaustive personal profile could be drawn up would be unconstitutional, but could, as a rule, be prevented by the existing procedural safeguards. However, the Public Prosecutor's Office, when ordering a surveillance measure, had to make sure by proper documentation in the case file and federal registers that it was aware of all other surveillance measures taken against the person concerned at the same time. Furthermore, the legislator had to observe whether, in view of future developments, the existing procedural safeguards were sufficient to grant an effective protection of fundamental rights and to prevent uncoordinated investigation measures by different authorities. 28. In the instant case, the interference with the applicant's rights by his surveillance by GPS was proportionate, notably in view of the gravity of the offences he had been suspected of and the fact that he had evaded other measures of surveillance. The use of several observation measures at the same time had not led to total surveillance. He had been observed with the help of GPS only when he had travelled in S.'s car. Other surveillance measures had basically been used only at weekends and had consisted only to a minor extent of the interception of communications. | The applicant, suspected of involvement in bomb attacks by a left-wing extremist movement, complained in particular that his surveillance via GPS and the use of the data obtained thereby in the criminal proceedings against him had violated his right to respect for private life. |
978 | Satellite dish | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants, a married couple of Iraqi origin, were born in 1957 and 1963 respectively and live in Västerås. They have three children, who are now eighteen, sixteen and eight years of age. 6. From 1 November 1999 they rented a flat in Rinkeby, a suburb of Stockholm. Rule 13 of the special provisions of the tenancy agreement stipulated the following: “The tenant undertakes not to erect, without specific permission, placards, signs, sunblinds, outdoor aerials and such like on the house.” The agreement further stipulated, as a general condition, that the tenants were obliged to take proper care of the flat and to maintain good sanitary conditions, order and good practice in the house. 7. It appears that when the applicants moved in, there was a satellite dish mounted on the façade, next to one of the windows of the flat. The applicants made use of this in order to receive television programmes in Arabic and Farsi. 8. In October 2003 the applicants'landlord changed. The new landlord, a real-estate company, demanded that the satellite dish be dismantled. The applicants did not comply and, by letter of 2 April 2004, the company gave the applicants notice of termination of the tenancy agreement with effect from 31 July 2004. 9. Further, in April 2004, the landlord initiated proceedings before the Rent Review Board ( hyresnämnden ) in Stockholm against the applicants and some other tenants who had installed satellite dishes in the same house. The landlord sought execution of the notice of termination, claiming that the applicants'satellite installation violated the express ban in Rule 13 of the tenancy agreement and that, by not complying with the instruction to dismantle the dish, they had failed to maintain good sanitary conditions, order and good practice. Stating that it objected only to satellite dishes mounted on or outside the façade of the house, while allowing, for instance, dishes placed on a balcony, the landlord claimed that the ban on such installations was of considerable importance as the installations a) risked causing injuries to persons and property for which the landlord would be held responsible, b) damaged the house physically and aesthetically and c) obstructed rescue workers'and the landlord's access to the flat. 10. Shortly after having received the notice of termination, the applicants dismantled the satellite dish. However, in its place they installed a new device by placing on the kitchen floor an iron stand from which an arm, on which the satellite dish was mounted, extended through a small open window. The installation could be pulled back into the kitchen when not being used. At the request of the Tenants'Association, an engineer, Mr S. Tornefelt, examined the installation on 26 August 2004. He found that it was very stable but recommended that, for safety reasons, a steel wire be fixed between the dish and the stand. The applicants made the recommended addition. 11. The applicants, as well as the other tenants summoned, contested the landlord's claims before the Rent Review Board. They stated that, by mounting satellite dishes for the reception of television programmes, some of which were broadcast in their mother tongues, they were exercising their freedom to receive information, as protected by the Swedish Constitution, Article 10 of the Convention and EC law. The landlord's interests, as provided for in Chapter 12, section 25 of the Land Code ( Jordabalken ), had to be balanced against this freedom. The applicants further claimed that they had now complied with the landlord's demand that the earlier satellite installation be dismantled. The new installation was, they claimed, in conformity with the rules of the tenancy agreement. Referring to Mr Tornefelt's opinion, they further maintained that it was safe and did not damage the house. The landlord submitted, in addition to what it had previously stated, that it was working on the possibility of installing broadband and internet access in the house, which would allegedly give access to the desired television channels. 12. Following an inspection of the applicants'satellite installation, the Rent Review Board gave a decision on 21 October 2004 finding in their favour. The Board noted in general that the assessment of whether tenants had failed to comply with their obligations by mounting satellite dishes had to involve the balancing of the interests of the landlord – which could be more or less strong depending on how the actual installations had been made – and the interests of the tenants in using a satellite dish – which could also vary depending on whether there were alternative means of receiving the television channels in question. In the applicants'case, the Board found that the fact that the new satellite installation extended through a window did not involve a breach of Rule 13 of the tenancy agreement. With regard to the general obligation to maintain good sanitary conditions, order and good practice in the house, the Board considered that the actual installation did not and could not damage the house. Moreover, the landlord's liability for damage to persons and property could not reasonably be incurred unless it were able to prevent the mounting and use of the satellite dish, which was not the case if the Board found that the landlord had no right to such prevention. Moreover, having regard to Mr Tornefelt's opinion and its own inspection, the Board considered that the risk of damage caused by the installation was negligible. Nor could it not find any evidence that the installation would obstruct rescue workers'access to the flat. The only inconvenience for the landlord was the aesthetic aspect. However, the applicants'interest in being able to watch television programmes that were not accessible by other available means weighed more heavily, and the satellite installation could not therefore be considered as contrary to good sanitary conditions, order and good practice. 13. The landlord appealed to the Svea Court of Appeal ( Svea hovrätt ). The court held an oral hearing at which, inter alia, Mr Tornefelt gave evidence. It also made an inspection of the applicants'satellite installation. By a final decision of 20 December 2005, the court found that the applicants had disregarded their obligations as tenants, under the tenancy agreement and Chapter 12, section 25 of the Land Code, to such a degree that the agreement should not be extended, pursuant to Chapter 12, section 46, subsection 1(2) of the Code. They were given a respite until 31 March 2006 to move from the flat. The court found that the landlord had made a reasonable distinction between acceptable and unacceptable satellite installations and had submitted weighty reasons for prohibiting dishes mounted on the façade or otherwise extending outside of it. It noted that the evidence showed that the applicants'dish was virtually always positioned outside the kitchen window and thus constituted a permanent installation, and concluded, contrary to the findings of the Rent Review Board, that its placement breached Rule 13 of the tenancy agreement. In assessing the seriousness of this breach of contract, the court first concluded, with reference to Mr Tornefelt's testimony, that the satellite installation met the reasonable requirements of stability and safety. However, noting that the landlord's main reason for not allowing the installation was the safety aspect, the court considered that the landlord was entitled to make general risk assessments and should not have to determine whether an individual installation was unsafe or inconvenient. It went on to state that, while the applicants'interest in receiving the broadcasts of the television channels in question had to be taken into consideration and that it was desirable that technical solutions for such reception be found, the right to freedom of information relied on did not have such a bearing on the case that it could be considered to have any real importance. It noted, finally, that the applicants had been fully aware of the importance that the landlord attached to the issue of the placement of satellite dishes and of the consequences that could follow from a refusal to comply with the landlord's instructions in this respect. Although their satellite installation did not pose any real safety threat, their interests could not be allowed to override the weighty and reasonable interest of the landlord that order and good custom be upheld. 14. The landlord offered the applicants the option of staying in their flat if they agreed to remove the satellite dish. They did not agree to do this, however, and instead moved on 1 June 2006. They have stated that, largely because of the scarcity of flats for rent in the Stockholm area but also due to there being a court eviction order against them, they were forced to move to Västerås, approximately 110 km west of Stockholm. As a consequence, the first applicant now had much longer and costlier trips to and from work and the applicants'three children had had to change nursery and school and leave friends. | This case concerned a court decision not to prolong a private tenancy agreement owing to the refusal by the tenants, a married couple of Iraqi origin with three minor children, to remove a satellite dish used to receive television programmes from their country of origin. The landlord offered to allow the applicants to stay if they agreed to remove the satellite dish, but they refused and had to move out. The applicants complained of a violation of their freedom to receive information. |
133 | Sexual abuse | I. THE CIRCUMSTANCES OF THE CASE 9. The applicant is a Bulgarian national who was born in 1980. 10. She alleged that she had been raped by two men on 31 July and 1 August 1995, when she was 14 years and 10 months old. The ensuing investigation came to the conclusion that there was insufficient proof of the applicant having been compelled to have sex. A. The events of the night of 31 July to 1 August 1995 1. The evening of 31 July 11. On 31 July 1995 the applicant and a friend of hers had been waiting to enter a disco bar in the town of K., when three men, P. (21 years old at the time), A. (20 years old at the time) and V.A. (age not specified), arrived in a car owned by P. The applicant knew P. and A. She had met P. in the same disco bar and had danced with him once. A. was the older brother of a classmate of hers. 12. A. invited the applicant to go with him and his friends to a disco bar in a small town 17 km away. According to the applicant, she agreed on condition that she would be back home before 11 p.m. 13. In the bar, one or two of the group had drinks. The applicant saw some friends, with whom she had a short chat. According to the applicant, she repeatedly told the others it was time to leave, as it was getting late. 14. At some time late in the evening, the group left and headed back to K. On the way, they were briefly stopped and checked by traffic police. 15. A. then suggested stopping for a swim at a nearby reservoir. According to the applicant, they went there despite her objections. She submitted that she had not suspected the men's intentions. 2. Events at the reservoir 16. At the reservoir, the applicant remained in the car, in the front passenger seat, saying that she was not interested in swimming. The three men headed towards the water. Soon afterwards, P. came back and sat in the front seat next to the applicant. 17. In her statements to the investigating authorities, the applicant submitted that P. had then pressed his body against hers, proposed that they “become friends” and started kissing her. The applicant had refused his advances and had asked him to leave. P. had persisted in kissing her while she had tried to push him back. He had then moved the car seat back to a horizontal position, grabbed her hands and pressed them against her back. The applicant had been scared and at the same time embarrassed by the fact that she had put herself in such a situation. She had not had the strength to resist violently or scream. Her efforts to push P. back had been unsuccessful, as he had been far stronger. P. had undressed her partially and had forced her to have sexual intercourse with him. 18. In her testimony, the applicant stated: “It was my first time and it hurt a lot. I felt sick and I wanted to throw up. I started crying.” 19. According to P.'s statements, he had had sex with the applicant in the car with her full consent. He had started kissing her, she had responded, and he had tried unsuccessfully to unbutton her jeans or loosen her belt, whereupon she had done so herself and had taken off her pants. 20. After P. had finished, he left the car and walked towards A. and V.A. In his submissions to the police, A. said that P. had told them that he had “shagged” the applicant. Shortly afterwards, the three men returned to the car and the group drove off. 21. In her submissions to the investigator, the applicant stated that she had later come to suspect that the three men had planned to have sex with her and had invented the pretext of swimming to drive to a deserted area. In particular, she did not remember A. and V.A. being wet when they had come back to the car, although they had insisted on going to the reservoir for a swim. 3. The alleged second rape 22. The applicant later testified that after the first rape she had been very disturbed and had cried most of the time. According to the version of events given by P. and A. when later questioned, the applicant had been in an excellent mood, had started caressing A., which had irritated P., and had asked to go to a bar or a restaurant. The group had gone to a restaurant, where the applicant had briefly talked with a Ms T., the singer performing there. Ms T. had been sitting at a table there with one Mr M. 23. Ms T., the singer, stated that on 1 August 1995 she had been in the restaurant with Mr M. Shortly after midnight the applicant, whom she knew vaguely, had approached her and asked whether her group would be performing in the next few days. Ms T. recalled having seen at that moment a man waiting at the door. Having heard the answer to her question, the applicant had left. Ms T. stated that the applicant had appeared cheerful and that there had been nothing unusual in her behaviour. 24. Mr M. was also questioned by the police. He stated that he knew the applicant very well and that he did not remember having seen her that night. 25. The applicant disputed the statements of P., A., V.A. and Ms T., maintaining that there had been no visit to a restaurant and that she did not know Ms T. The applicant and her mother later accused Ms T. of perjury (see paragraphs 66-68 below). 26. Instead of returning to K., at around 3 a.m. the group went to a neighbouring town, where V.A.'s relatives had a house. A., V.A. and the applicant got out of the car. P., who was the owner of the car, drove off. 27. The three men and a baker, Mr S., called by them as a witness, later maintained that in the meantime there had been a short stop at Mr S.'s bakery. Mr S. allegedly had the key to the house. Mr S., when interrogated, stated that at about 2 a.m. he had given the key to V.A. and had seen the applicant waiting in the car, apparently in a good mood. Loud music had been coming from the car. The applicant disputed that there had been any visit to a baker's shop and accused the baker of perjury. P., A. and V.A. submitted in their statements that they had decided to go to the house as the applicant had told them that she had quarrelled with her mother and did not want to go back home. 28. The applicant stated to the police that she had felt helpless and in need of protection. As A. was the brother of a classmate of hers, she had expected such protection from him and had followed him and V.A. into a room on the ground floor of the house. 29. There was one bed in the room and the applicant sat on it. The two men smoked and talked for a while. V.A. then left the room. 30. The applicant maintained that at that point A. had sat next to her, pushed her down onto the bed, undressed her and forced her to have sex with him. The applicant had not had the strength to resist violently. She had only begged the man to stop. She later related in her statement: “I started crying and asked him to stop ... He started caressing my breasts and sucking my neck ... At some point he took my jeans and my pants off with his feet. Then he spread my legs apart with his legs and forced his way into me ... [After he finished] I started crying and I continued crying until some time in the morning, when I fell asleep ... [V.A.] woke me up telling me that [A.] had gone to find a car to drive me back to K. I sat on the bed and started crying.” 31. A.'s position before the police was that he had had sex with the applicant with her full consent. 4. The morning of 1 August 1995 32. On the following morning at around 7 a.m., the applicant's mother found her daughter in the house of V.A.'s relatives. The applicant's mother stated that, having learned from neighbours that her daughter had been seen the previous evening with A., she had been on her way to A.'s house when she had met V.A. in the street. V.A. had allegedly tried to mislead the applicant's mother in an effort to gain time and warn A. However, she had insisted. 33. The applicant and her mother maintained in their submissions during the investigation that the applicant had told her mother right away that she had been raped. A. had also been there. He had told the applicant's mother that “a truck driver” had had sex with her daughter the previous night. 34. According to A.'s version of events, the applicant and her mother had quarrelled, the applicant allegedly refusing to go with her and telling her to go away. A neighbour, apparently named as a witness by A. or V.A., stated that he had heard the quarrel and, in particular, the refusal of the applicant to leave with her mother and her saying that nothing had happened to her. The applicant accused the witness of perjury. 35. The applicant and her mother went directly to the local hospital, where they were directed to see a forensic medical examiner. The applicant was examined at about 4 p.m. 36. The medical examiner found that the hymen had been freshly torn. He also noted grazing on the applicant's neck, measuring 35 mm by 4 mm, and four small oval-shaped bruises. As noted in the medical certificate, the applicant had reported only one rape, stating that it had occurred between 10.30 and 11 p.m. the previous day at the reservoir. B. Events between 1 and 11 August 1995 37. The applicant submitted that during the next few days she had refused to talk to her mother about the incident. She had given no details and had not mentioned the second rape at all. She explained that she lived in a conservative small-town environment where virginity was considered to be an asset for marriage. She felt ashamed of the fact that she had “failed to protect her virginity ” and of “ what people would say about it”. 38. On the first evening after the events, on 1 August 1995, P. visited the applicant's family. The applicant and her mother stated that that evening P. had begged for forgiveness and had claimed that he would marry the applicant when she came of age. The applicant's mother had considered that accepting the offer would be reasonable in the circumstances. This had influenced the initial behaviour of the applicant, who had accepted her mother's idea of minimising the damage. 39. On one of the following evenings, the applicant went out with P. and some of his friends. 40. P. and V.A., the latter claiming that he had been with P. during the visit to the applicant's house on the evening of 1 August 1995, stated that the applicant's mother had told them that “all pleasure must be paid for” and had tried to extort money from them. 41. P.'s grandmother also made a statement to the police. She asserted that on an unspecified date the applicant's mother had visited her, trying to extort money. 42. With regard to that visit and other relevant events, Mrs D., a neighbour and friend of the applicant's mother, stated that the applicant's mother had been very upset about the events and had agreed to her daughter going out with P. as he had maintained that he loved the applicant. The applicant's mother had nevertheless decided to talk to P.'s parents. On an unspecified date Mrs D. and another neighbour had approached the house of P.'s family, but his grandmother had told them to go away, stating that the applicant had slept not only with P. but also with A. At that moment A. had arrived. Mrs D. had asked him whether it was true that he had slept with the applicant. He had confirmed that it was true, adding that he had the money and power to do as he pleased. Until then, the applicant's mother had not known about the second rape. 43. The applicant submitted that a visit by A.'s father on 8 August 1995 had caused her to break down. She had then confided to her mother about the second rape. On 10 August 1995 the applicant's father returned home, after being absent for several days. The family discussed the matter and decided to file a complaint. The applicant's mother did so on 11 August 1995. C. The investigation 1. The initial police inquiry 44. On 11 August 1995 the applicant made a written statement about the events of 31 July and 1 August. On the same day P. and A. were arrested and made written statements. They claimed that the applicant had had sexual intercourse with them of her own free will. The two men were released. Written statements were also made by V.A. and a person who lived next to the house where the second alleged rape had taken place. On 25 August 1995 a police officer drew up a report and forwarded the file to the competent prosecutor. 45. On 14 November 1995 the district prosecutor opened a criminal investigation into the alleged rape and referred the case to an investigator. No charges were brought. 46. No action was taken on the case between November 1995 and November 1996. 2. The proceedings in relation to the complaints by P. and A. alleging perjury 47. On 24 August 1995 P. and A. filed complaints with the district prosecutor's office, stating that the applicant and her mother had been harassing them by making false public accusations. 48. On the basis of these complaints, on 28 August 1995, the district prosecutor ordered a police inquiry. In September and October 1995 several persons were heard and made written statements. 49. On 25 October 1995 a police officer drew up a report apparently accrediting the allegations of P. and A. and disbelieving the version of the facts as submitted by the applicant and her mother. 50. On 27 October 1995 the file was transmitted to the district prosecutor's office with jurisdiction to decide whether or not to institute criminal proceedings against the applicant and her mother. It appears that the matter was left hanging and no decision was taken. 3. The resumed investigation into the rape case 51. Between 2 November and 9 December 1996 the investigator questioned the applicant, her mother and other witnesses. P. and A. were heard as witnesses. 52. The applicant gave a detailed account of the facts, repeating that P. had overcome her resistance by pressing her against the car seat and twisting her hands, and that thereafter she had been in a state of shock and unable to resist A. 53. In his evidence, P. claimed that the applicant had actively responded to his advances. He also asserted that the applicant had spoken with Mr M. at the restaurant they had allegedly gone to after having sex. 54. Both A. and P. stated, inter alia, that shortly after having sex with P. at the reservoir, the applicant had started caressing A. in the car. 55. On 18 December 1996 the investigator completed his work on the case. He drew up a report stating that there was no evidence that P. and A. had used threats or violence, and proposed that the prosecutor close the case. 56. On 7 January 1997 the district prosecutor ordered an additional investigation. The order stated that the initial investigation had not been objective, thorough or complete. 57. On 16 January 1997 the investigator to whom the case had been referred appointed a psychiatrist and a psychologist to answer several questions. The experts were asked, inter alia, whether it was likely that the applicant would have spoken calmly with Ms T., the singer at the restaurant, and then listened to music in the car, if she had just been raped and whether it was likely that several days after the alleged rape the applicant would have gone out with the person who had raped her. 58. The experts considered that, owing to her naivety and inexperience, the applicant had apparently not considered the possibility that she might be sexually assaulted. There was no indication that she had been threatened or hurt, or that she had been in a state of shock during the events, as she had demonstrated a clear recollection of them. The experts considered that during the events she must have been suddenly overwhelmed by an internal conflict between a natural sexual interest and a sense that the act was reprehensible, which had “reduced her ability to resist and defend herself”. They further found that the applicant was psychologically sound and that she had understood the meaning of the events. In view of her age at the time, however, she “could not assert a stable set of convictions”. 59. The experts also found that, if there had indeed been a meeting between Ms T. and the applicant after the events at the reservoir – and this was disputed – it was still possible that the applicant could have had a short exchange with Ms T. after being raped. As to the applicant going out with P. several days after the events, this could be easily explained by her family's desire to lend a socially acceptable meaning to the incident. 60. On 28 February 1997 the investigator concluded his work on the case and drew up a report, again proposing that the case should be closed. He considered that the experts'opinion did not affect his earlier finding that there was no evidence demonstrating the use of force or threats. 61. On 17 March 1997 the district prosecutor ordered the closure of the criminal investigation. He found, inter alia, that the use of force or threats had not been established beyond reasonable doubt. In particular, no resistance on the applicant's part or attempts to seek help from others had been established. 62. The applicant lodged consecutive appeals with the regional prosecutor's office and the Chief Public Prosecutor's Office. The appeals were dismissed in decisions of 13 May and 24 June 1997 respectively. 63. The prosecutors relied, inter alia, on the statements of the alleged perpetrators and V.A. that the applicant had not shown any signs of distress after having sex with P. at the reservoir, and the evidence of the three men and Ms T. that the latter had met the applicant and had spoken with her that night. As regards the applicant's objections that those statements should be rejected as being untrue, the decision of 13 May 1997 stated that “prosecutors'decisions cannot be based on suppositions, and witnesses'statements cannot be rejected only on the basis of doubts, without other evidence ...”. 64. The decision of 13 May 1997 also stated: “It is true that, as can be seen from the report of the forensic psychiatric experts, the young age of the applicant and her lack of experience in life meant that she was unable to assert a stable set of convictions, namely to demonstrate firmly her unwillingness to engage in sexual contact. There can be no criminal act under Article 152 §§ 1 (2) and 3 of the Criminal Code, however, unless the applicant was coerced into having sexual intercourse by means of physical force or threats. This presupposes resistance, but there is no evidence of resistance in this particular case. P. and A. could be held criminally responsible only if they understood that they were having sexual intercourse without the applicant's consent and if they used force or made threats precisely with the aim of having sexual intercourse against the applicant's will. There is insufficient evidence to establish that the applicant demonstrated unwillingness to have sexual intercourse and that P. and A. used threats or force.” It was further noted that the applicant had explained that the bruises on her neck had been caused by sucking. 65. The decision of 24 June 1997 reiterated those findings, while noting that the statements of Ms T., the singer at the restaurant, were not decisive. It also stated: “What is decisive in the present case is that it has not been established beyond reasonable doubt that physical or psychological force was used against the applicant and that sexual intercourse took place against her will and despite her resistance. There are no traces of physical force such as bruises, torn clothing, etc. ... It is true that it is unusual for a girl who is under age and a virgin to have sexual intercourse twice within a short space of time with two different people, but this fact alone is not sufficient to establish that a criminal act took place, in the absence of other evidence and in view of the impossibility of collecting further evidence.” 4. Other proceedings 66. In June or July 1997 the applicant and her mother requested the institution of criminal proceedings against Ms T. and other witnesses, including V.A., alleging that they had committed perjury in that their statements in connection with the investigation into the rape of the applicant had been false. 67. On 14 July 1997 the same prosecutor from the district prosecutor's office who had ordered the closure of the rape investigation refused the request, stating that it was unfounded and even abusive, as all the facts had been clarified in previous proceedings. 68. An ensuing appeal by the applicant was dismissed on 6 February 1998 by the regional prosecutor's office. D. The expert opinion submitted by the applicant 69. In June 2001 the applicant submitted a written opinion by two Bulgarian experts, Dr Svetlozar Vasilev, a psychiatrist, and Mr Valeri Ivanov, a psychologist, who had been asked by the applicant's lawyer to comment on the case. 70. The experts stated, with reference to scientific publications in several countries, that two patterns of response by rape victims to their attacker were known: violent physical resistance and “frozen fright” (also known as “ traumatic psychological infantilism syndrome ” ). The latter was explained by the fact that any experience-based model of behaviour was inadequate when the victim was faced with the inevitability of rape. As a result the victim, terrorised, often adopted a passive- response model of submission, characteristic of childhood, or sought a psychological dissociation from the event, as if it were not happening to her. 71. The experts stated that all the scientific publications they had studied indicated that the “frozen-fright pattern” prevailed. Further, they had conducted their own research for the purposes of their written opinion in the present case. They had analysed all the cases of young women aged 14 to 20 who had contacted two specialised treatment programmes for victims of violence in Bulgaria during the period from 1996 to 2001, declaring that they had been raped. Cases that were too different from that of the applicant had been excluded. As a result, twenty-five cases had been identified, in twenty-four of which the victim had not resisted violently, but had reacted with passive submission. | The applicant, aged 14 (which was the age of consent for sexual intercourse in Bulgaria), was raped by two men; she cried during and after being raped and was later taken to hospital by her mother, where it was found that her hymen had been torn. Because it could not be established that she had resisted or called for help, the perpetrators were not prosecuted. |
748 | Freedom of expression / Freedom to receive and impart information (Article 10 of the Convention) | 2. The applicant was born in 1981 and lives in Curtea de Argeș. He was represented by Ms D.O. Hatneanu, a lawyer practising in Bucharest. 3. The Government were represented by their Agents, most recently by Ms. O. Ezer, of the Ministry of Foreign Affairs. 4. The facts of the case may be summarised as follows. BACKGROUND TO THE CASE 5. The applicant is a founding member and president of the Spiritual Militia Civic Movement Association ( Asociaţia Mișcarea Civică Miliţia Spirituală ). He is a known activist and was involved in various civic actions, including the Save Roșia Montană ( Salvaţi Roșia Montană ) campaign. 6. That campaign, which attracted significant national and international support and attention, was initiated by the local community in Roșia Montană in the year 2000 as a protest against a mining project of the local gold and silver deposits. The project, which would involve the use of cyanide, was controversial because of its estimated negative impact on the environment and the local heritage. The campaign eventually led to the Roșia Montană mining landscape being registered on the United Nations Educational, Scientific and Cultural Organization’s world heritage list in July 2021. THE EVENT IN ISSUEThe applicant’s decision to participate in the event The applicant’s decision to participate in the event The applicant’s decision to participate in the event 7. According to the applicant, on 28 August 2013 he read in the newspapers a press statement by the government informing the public that during their 4 p.m. meeting of 27 August 2013 they had approved a bill ( proiect de lege ) concerning the mining of the gold and silver deposits in Roșia Montană and had sent it to Parliament to be adopted. The bill in question had been approved by the government without any prior public consultation or information being provided and had practically green-lighted the mining of the Roșia Montană deposits. 8. On the same date the applicant and three other persons decided to express their negative opinion about the government’s above-mentioned actions and to raise public awareness about the bill by handcuffing themselves to one of the barriers blocking access to the parking area of the government’s headquarters and by holding up signs. The video-recording of the event 9. The event was filmed by an acquaintance of the applicant and the resulting film was posted on the YouTube Internet website on 29 August 2013. The film was 5 minutes and 32 seconds long. The first 3 minutes and 55 seconds covered the actual event and the rest covered an interview with the applicant and two of the participants carried out a few hours after the event about the reasons prompting their actions. 10. The film showed that a police officer who was guarding the car park barrier in question immediately tried to stop the applicant and the other persons from handcuffing themselves to the barrier’s rails. Other police officers rushed in to help him, but the applicant and the other three persons succeeded in attaching themselves to the rails and holding up signs reading “Save Roșia Montană” and “United to save Roșia Montană” ( Uniţi pentru a salva Roșia Montană ). The applicant and the other persons were completely silent throughout almost the entire duration of the event. The handcuffs of two of the participants were detached from the barrier’s rails very quickly but the applicant’s and one other participant’s handcuffs could not be removed as quickly because the applicant complained that the process was hurting his arm. 11. A gendarme officer asked the applicant and the remaining handcuffed participant to leave the area because their actions were unlawful, but they refused to do so unless a government representative came out of the building to talk to them. As a result, the officers decided to take the applicant and the remaining person handcuffed to the barrier to a police station on the ground that they had refused to cooperate with the police. The police officers detached the applicant and the other person from the barrier’s rails by cutting the rail to which the handcuffs were attached and carried them in their arms to a police car. One of the other two participants was also asked by the officers to get into a police car and to go to the police station, and he complied. 12. The film further showed that apart from the law-enforcement officials and a few passers-by who stopped to watch or film the applicant’s removal from the barrier, no other persons were present and the event did not affect in any way the car and pedestrian traffic in the area. Also, no official or unofficial car tried to use the barrier in question to access the government building’s car park. 13. The film also showed that in her interview carried out a few hours after the event, one of the participants justified her actions by stating that she had been impressed by the way the locals in Roșia Montană had been fighting against the mining project and by the fact that people had been unaware of their fight. As a result, she had felt that she needed to do something about it and also to convince other young people to do the same by the power of example. She considered that actions had to be more radical since people had been lodging petitions for years only to be ignored. 14. During the same interview, another participant stated that their actions had been to try and break the media silence around the Roșia Montană subject. He was of the opinion that since the type of peaceful protests that had been held before had not had any significant impact and the persons involved in them had not been taken seriously either by the authorities or by the mass media, their type of protest could yield results. THE POLICE REPORT AND THE FINE IMPOSED ON THE APPLICANT 15. According to a police report drafted on 28 August 2013 at 6.20 p.m. at police station no. 1 in Bucharest, the applicant was fined 500 Romanian lei (RON) (an estimated 113 euros (EUR)) because he had committed the acts set out in Article 3 § 2 and punished by Article 4 § 1 (c) of Law no. 61/1991 on the punishment of acts breaching certain norms of social coexistence and the public order and peace. The police report stated in particular that “... at 5.15 p.m. ... [the applicant] had been spotted ... at the Romanian government’s headquarters in Victoria Square, the Iancu de Hunedoara Boulevard entrance, having formed a group with ... [S.M.B.], [F.B.], and [R.B.] in order to commit antisocial acts, blocking access to the institution [and] attaching himself together with S.M.B. with handcuffs to the access gate’s barrier, while the other persons held up the message ‘United for Roșia Montană’ [ Uniţi pentru Roșia Montană ]”. 16. The police report also stated that the applicant had acknowledged the act committed by him, but that he had refused to sign the police report. THE APPLICANT’S CHALLENGE AGAINST THE FINE 17. On 18 September 2013 the applicant challenged the police report and the fine imposed on him and asked the court to annul them. In the alternative, he asked the court to replace the fine by a warning. He argued that the police report had been unlawful because, to the extent that a sanction had been needed in his case, he should have been punished on the basis of the provisions of Law no. 60/1991 on the organisation and conduct of public gatherings. His behaviour had been wrongly classified as being punished under Law no. 61/1991, because the manifestation of one’s rights to freedom of expression and assembly through protest could not be an antisocial act which disturbed the public order and peace. 18. The applicant further argued that the police report had been unfounded. The acts imputed to him had been a form of lawful manifestation of his above-mentioned rights (see paragraph 17). The protest had represented a spontaneous reaction to a decision taken by the government, without any prior notice, with which he had disagreed. In such circumstances, according to the judgment of the European Court of Human Rights in Bukta and Others v. Hungary (no. 25691/04, ECHR 2007-III), a person’s right to freedom of assembly could be exercised without a prior notification to the authorities. By complying with the three-day time-limit requirement set out in Law no. 60/1991, the spontaneous protest against the government’s decision in question would have been void of any substance. 19. Moreover, during the protest he had behaved peacefully and had not disturbed or affected in a significant way the activity of the institution. The protest had taken place in front of a gate which was used only by high dignitaries and therefore was the one least used for access to the building; no one had attempted to use the gate in question during his presence there and the building had remained accessible during the protest through its several other gates. It could not be said, therefore, that he had formed a group of three or more people in order to commit unlawful acts, violating the public peace and order and the norms of social coexistence. 20. Lastly, the applicant argued that the sanction imposed on him had been unnecessary in a democratic society. In the latter society the existence and expression of critical opinions about the government was essential, even if done in unconventional ways aimed at attracting the public’s and the decision-makers’ attention. FIRST ‑ INSTANCE JUDGMENT 21. On 7 July 2014 the Bucharest District Court (“the District Court”) dismissed the applicant’s challenge, holding that the police report had been lawful. Given the content of the act that had been described in the police report and the images filmed at the scene of the event, the legal classification of the act as falling under Article 3 § 2 of Law no. 61/1991 had been justified because the form of protest chosen by the applicant had breached Law no. 60/1991, therefore amounting to an unlawful act, and his having handcuffed himself to the barrier and the expression made could be considered to be acts that had breached the public peace and order and the norms of social coexistence. 22. The court further held that the applicant had not given well-founded reasons grounded in exceptional circumstances that could justify holding this form of protest without following the preliminary procedure provided for by Law no. 60/1991 of declaring public gatherings to the authorities. It could not be said that the rules set out in Law no. 60/1991 did not cover spontaneous forms of protest since the manifestation of one’s rights to freedom of expression and assembly could be done only within the limits set by the law and Law no. 60/1991 required that a prior declaration be made about any type of public gathering. 23. Taking into account the text of Article 11 of the European Convention on Human Rights, it could not be said that the sanction imposed on the applicant had not complied with the conditions set out in paragraph 2 of that Article since the measure had been provided for by law, had been imposed in order to protect public order and the rights and freedoms of others and to prevent crime and had been proportionate to the aim pursued given the specific form and means of protest chosen by the applicant. 24. Lastly, the court held that the applicant had not rebutted in any way the version of the facts contained in the police report, even though the burden of proof had been on him to do so, and that there were no lawful grounds to annul the police report. Also, there was no reason to replace the fine by a warning since the applicant had been correctly punished by the lowest fine provided for by law for his actions. THE APPLICANT’S APPEAL AGAINST THE FIRST-INSTANCE JUDGMENT 25. The applicant appealed against the judgment. He reiterated the arguments that his actions had been a form of manifesting his right to freedom of expression (see paragraph 18 above) and that during the protest he had behaved peacefully and had not disturbed the public peace nor affected in a significant way the activity of the institution (see paragraph 19 above). 26. In the event that his actions were to be viewed as constituting the organisation of and participation in a public gathering which had lacked the requisite prior notification, his punishment would have been lawful only if he had been punished on the basis of Article 26 of Law no. 60/1991, and not on the basis of Law no. 61/1991. The District Court had not taken into account the video-recording of the event which had shown that at the scene of the protest the law-enforcement officials had applied the procedure set out in Law no. 60/1991 and had not referred at all to Law no. 61/1991. Also, it had considered that the sanction imposed on him had been lawful by relying on the provisions of Law no. 60/1991, even though it had found at the same time that his actions had been a form of protest which had breached Law no. 61/1991. 27. The District Court had failed to examine his argument about his right to freedom of expression having been breached (see paragraphs 17-20 above). The findings of the European Court of Human Right in the judgment in Tatár and Fáber v. Hungary (nos. 26005/08 and 26160/08, 12 June 2012), which concerned circumstances similar to his, had made the examination of his above-mentioned argument even more necessary since the court had considered that his actions had not been covered by the provisions of Law no. 61/1991. 28. The lower court had also ignored the findings of the European Court of Human Rights in Bukta and Others (cited above) to the effect that justified spontaneous gatherings could be held in the absence of a requisite prior notice. As a result, it had misinterpreted Article 11 of the European Convention on Human Rights. 29. Even though the applicant had proved that the government had approved a controversial bill which he had wanted to contest only a day before the protest, suddenly and without any prior notice, the District Court had taken the view that the spontaneous protest had not been justified by the circumstances. At the same time, in contradiction to this finding and despite the fact that spontaneous gatherings by their nature could not be notified in advance, the court had found that the prior-notice procedure provided for by Law no. 60/1991 also covered spontaneous gatherings. However, if that finding of the lower court had been true, its assertion to the effect that the applicant had to provide justified reasons for failing to follow the prior-notice procedure provided for by Law no. 60/1991 would be rendered irrelevant. LAST-INSTANCE COURT JUDGMENT 30. By a final judgment of 10 June 2015, the Bucharest County Court dismissed the applicant’s appeal and upheld the lower court’s judgment. It held that the applicant’s actions had been correctly classified and punished. According to the content of the police report and of the applicant’s application to the court, the applicant and three other persons had decided on 27 August 2013 to form a group in order to protest in front of the government building on the following day against the government and its decision to approve a bill that was green-lighting the mining of the deposits in Roșia Montană. There could be no doubt that the four persons’ agreement to meet on the following day in a certain location and at a certain time with the aim of conducting an unauthorised meeting met the conditions of the contravention provided for by Article 3 § 2 of Law no. 61/1991 read in the light of Article 26 § 1 (a) of Law no. 60/1991. 31. The applicant’s argument that the authorities should have relied on Law no. 60/1991 rather than Law no. 61/1991 to impose the sanction on him was ill-founded because the two laws were complimentary and not mutually exclusive as provided also by Article 2 of Law no. 60/1991. To accept the applicant’s view would mean that those instances of disturbing the public order and peace which had not been covered by Law no. 60/1991 would have gone unpunished. 32. The applicant’s argument to the effect that his rights to freedom of expression and assembly had been violated was likewise ill-founded. While it was true that the Constitution and Law no. 60/1991 provided for a person’s right to protest in public places by expressing his or her opinions, the latter law also provided that the protests had to be conducted in observance of the lawful procedure, the rights and freedoms of other citizens and the other conditions provided for by law. Given the content of the applicable legal framework which set out the rules and conditions for manifesting one’s rights to freedom of expression and assembly and which required a written notification at least three days prior to the date of the protest, the measure taken against the applicant had not violated his right to freedom of expression. OTHER INFORMATION 33. The bill adopted by the government on 27 August 2013 concerning the Roșia Montană mining project (see paragraph 7 above) sparked numerous other large protests across Romania starting from 1 September 2013. The protests eventually led to Parliament rejecting the bill. | This case concerned the fining of the applicant, a known activist, for taking part in a protest against proposed gold- and silver-mining activity in the Roșia Montană area. He along with three others had handcuffed themselves to one of the entrance barriers of the main Government building and displayed signs. The applicant complained of the sanction imposed on him by the domestic courts. |
483 | Obligation imposed solely on men to serve in the fire brigade or pay a financial contribution in lieu | I. THE CIRCUMSTANCES OF THE CASE 6. Mr Karlheinz Schmidt, a German national who was born in 1939, lives at Tettnang, in the Land of Baden-Württemberg. On 30 April 1982 the relevant municipal authorities required him to pay a fire service levy ( Feuerwehrabgabe ) of 75 German marks (DM) for 1982. This decision was based on section 43 of the Land Fire Brigades Act, as amended on 27 November 1978 ( Feuerwehrgesetz, see paragraph 14 below -"the 1978 Act") and on the municipal decree ( Satzung ) of 5 December 1979; it stated that all male adults residing in Tettnang at the beginning of the budget year (1 January) were liable to pay the contribution in question. 7. The applicant regarded this decision as contrary, inter alia, to the constitutional principle of equality before the law (Article 3 of the Basic Law - Grundgesetz ) and he appealed against it. The administrative authority ( Landratsamt ) of the district of Lake Constance ( Bodenseekreis ) rejected this appeal on 20 July. 8. On 16 August 1982 the applicant appealed to the Sigmaringen Administrative Court ( Verwaltungsgericht ), which dismissed his appeal on 18 August 1983. Referring to the case-law of the Federal Constitutional Court ( Bundesverfassungsgericht ) and to that of the Administrative Appeals Court ( Verwaltungsgerichtshof ) of the Land, it ruled that the obligation for men, and not women, to serve in the fire brigade or to make a financial contribution was compatible with the Constitution. 9. The Administrative Appeals Court dismissed the appeal which Mr Schmidt had filed against the decision of the Administrative Court; it refused him leave to appeal on points of law. It pointed out that like the Constitutional Court it had always held the legislation requiring only the male residents of a municipality to pay a fire service levy to be consistent with the Constitution. The applicant ’ s arguments could not persuade it to reconsider its case-law or to refer the question to the Constitutional Court again. There were no new facts to present to the Constitutional Court and there had not been a fundamental change in legal opinion on the subject. The Administrative Appeals Court stated that it endorsed the opinion expressed in the Constitutional Court ’ s judgment of 5 July 1983 to the effect that, in view of the risks inherent in service in the fire brigade, there remained objective reasons for imposing the obligation on men but not on women. 10. The applicant challenged this judgment, which had been delivered on 25 March 1986, in so far as it had refused him leave to appeal on points of law, but the Federal Administrative Court ( Bundesverwaltungsgericht ) dismissed his appeal on 6 October 1986. In its view, the case raised no issue of principle ( grundlegende Bedeutung ). On the question whether the imposition of a fire service levy was in breach of the Constitution, it concluded that it was not, in conformity with a judgment of the Constitutional Court of 17 October 1961. It would only be possible to refer the matter once again to the Constitutional Court if there were new facts or a fundamental change in legal opinion. However, the Land Administrative Appeals Court had found no evidence of this. 11. On 11 November 1986 Mr Schmidt applied finally to the Federal Constitutional Court, which on 31 January 1987, sitting as a panel of three members, declined to accept the appeal for adjudication, on the ground that it did not have sufficient prospects of success. It noted, inter alia: "... The Federal Constitutional Court has already held, in its judgment of 17 October 1961 ..., concerning the provision which corresponds to the present section 43 para. 2, first sentence, of the Baden-Württemberg Fire Brigades Act, that there had been no violation of the principle of equal treatment. In subsequent decisions delivered ... on 6 December 1978 (1 BvR 722/77), 13 November 1979 (1 BvR 768/79), 5 July 1983 (1 BvR 210/83), 19 November 1985 (1 BvR 609/85) and 11 December 1985 (1 BvR 1277/85), it stated that from the point of view of Article 3 para. 2 of the Basic Law [enshrining the principle of sexual equality] there had still been no general change in legal opinion; the fact that the obligation to serve in the fire brigade was limited to the male residents of a municipality still continued to be objectively justified on account of the risks inherent in service in the fire brigade, even though some fire brigade duties were performed by women and recently fire brigades for female volunteers had even been set up. Nor does the fact that the Länder of Lower Saxony (section 14 para. 3 of the Lower Saxony Fire Protection Act) and the Rhineland-Palatinate (section 10 para. 2 of the Rhineland- Palatinate Fire Protection Act) make provision for an obligation to serve in the fire brigades regardless of sex constitute a reason for departing from this case-law. The sole decisive factor is that there remain today objective reasons ( Anknüpfungspunkte ) on the basis of which the legislature is entitled to treat men and women differently in this regard. That does not mean that there is an obligation to enact regulations differentiating between the sexes. ..." | The applicant claimed to be the victim of discrimination on the ground of sex in so far as in the Land of Baden-Württemberg only men were subject to the obligation to serve as firemen or pay a financial contribution in lieu of such service. |
867 | In the context of criminal justice | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1972 and lives in Paris. 6. On 10 February 2004 an investigation was launched in respect of the applicant for book theft. The investigating authorities took his fingerprints. 7. By a judgment handed down on 15 February 2005 following an appeal against a sentence delivered on 28 April 2004 by the Paris Criminal Court, the Paris Court of Appeal acquitted the applicant. 8. On 28 September 2005 the applicant was taken into police custody under the flagrante delicto procedure, also for book theft. He was again fingerprinted. 9. On 2 February 2006 the proceedings were discontinued by the Paris public prosecutor. 10. The fingerprints taken during these proceedings were entered into the national fingerprint database ( fichier automatisé des empreintes digitales - “the FAED”). 11. In a letter of 21 April 2006 to the Paris public prosecutor, the applicant requested the removal of his fingerprints from the FAED. 12. On 31 May 2006 the public prosecutor ordered the deletion only of the fingerprints taken during the first set of proceedings. He argued that retaining one specimen of the applicant’s fingerprints was justified in the latter’s interests, as it could rule out his involvement in acts committed by a third person stealing his identity. 13. On 26 June 2006 the applicant lodged an appeal with the judge of the Paris Tribunal de grande instance with responsibility for civil liberties and detention matters. 14. By order of 25 August 2006, the judge with responsibility for civil liberties and detention matters dismissed his appeal. He held that retaining the fingerprints was in the interests of the investigating authorities, as it provided them with a database comprising as full a set of references as possible. Furthermore, this measure was not prejudicial to the applicant thanks to the confidentiality of the database, which prevented any impact on the applicant’s private or social life. 15. On 21 December 2006 the President of the Investigation Division of the Paris Court of Appeal upheld this order. 16. In a judgment of 1 October 2008 the Court of Cassation dismissed an appeal on points of law by the applicant on the grounds that since the procedure was written he had been in a position to put forward his arguments and take cognisance of the reasons for the public prosecutor’s objection to the complete deletion of the fingerprints. It added that thanks to the evidence produced during the proceedings, it could verify that the request had been addressed in accordance with the legislation and international treaties cited by the applicant, which included Article 8 of the Convention. | In 2004 and 2005 the applicant was the subject of two investigations into the theft of some books. He was acquitted following the first set of proceedings and the second set of proceedings was discontinued. On both occasions his fingerprints were taken and recorded in the fingerprints database. In 2006 the applicant requested that his prints be deleted from the database. His request was granted only in relation to the prints taken during the first set of proceedings. The appeals lodged by the applicant were dismissed. The applicant complained that the retention of data concerning him in the computerised database of fingerprints had infringed his right to respect for his private life. |
851 | Interception of communications, phone tapping and secret surveillance | I. PARTICULAR CIRCUMSTANCES OF THE CASE 12. Mr. James Malone was born in 1937 and is resident in Dorking, Surrey. In 1977, he was an antique dealer. It appears that he has since ceased business as such. 13. On 22 March 1977, Mr. Malone was charged with a number of offences relating to dishonest handling of stolen goods. His trial, which took place in June and August 1978, resulted in his being acquitted on certain counts and the jury disagreeing on the rest. He was retried on the remaining charges between April and May 1979. Following a further failure by the jury to agree, he was once more formally arraigned; the prosecution offered no evidence and he was acquitted. 14. During the first trial, it emerged that details of a telephone conversation to which Mr. Malone had been a party prior to 22 March 1977 were contained in the note-book of the police officer in charge of the investigations. Counsel for the prosecution then accepted that this conversation had been intercepted on the authority of a warrant issued by the Secretary of State for the Home Department. 15. In October 1978, the applicant instituted civil proceedings in the Chancery Division of the High Court against the Metropolitan Police Commissioner, seeking, inter alia, declarations to the effect that interception, monitoring and recording of conversations on his telephone lines without his consent was unlawful, even if done pursuant to a warrant of the Secretary of State. The Solicitor General intervened in the proceedings on behalf of the Secretary of State but without being made a party. On 28 February 1979, the Vice-Chancellor, Sir Robert Megarry, dismissed the applicant ’ s claim (Malone v. Commissioner of Police of the Metropolis (No. 2), [1979] 2 All England Law Reports 620; also reported at [1979] 2 Weekly Law Reports 700). An account of this judgment is set out below (at paragraphs 31-36). 16. The applicant further believed that both his correspondence and his telephone calls had been intercepted for a number of years. He based his belief on delay to and signs of interference with his correspondence. In particular, he produced to the Commission bundles of envelopes which had been delivered to him either sealed with an adhesive tape of an identical kind or in an unsealed state. As to his telephone communications, he stated that he had heard unusual noises on his telephone and alleged that the police had at times been in possession of information which they could only have obtained by telephone tapping. He thought that such measures had continued since his acquittal on the charges against him. It was admitted by the Government that the single conversation about which evidence emerged at the applicant ’ s trial had been intercepted on behalf of the police pursuant to a warrant issued under the hand of the Secretary of State for the prevention and detection of crime. According to the Government, this interception was carried out in full conformity with the law and the relevant procedures. No disclosure was made either at the trial of the applicant or during the course of the applicant ’ s proceedings against the Commissioner of Police as to whether the applicant ’ s own telephone number had been tapped or as to whether other and, if so, what other, telephone conversations to which the applicant was a party had been intercepted. The primary reasons given for withholding this information were that disclosure would or might frustrate the purpose of telephone interceptions and might also serve to identify other sources of police information, particularly police informants, and thereby place in jeopardy the source in question. For similar reasons, the Government declined to disclose before the Commission or the Court to what extent, if at all, the applicant ’ s telephone calls and correspondence had been intercepted on behalf of the police authorities. It was however denied that the resealing with adhesive tape or the delivery unsealed of the envelopes produced to the Commission was attributable directly or indirectly to any interception. The Government conceded that, as the applicant was at the material time suspected by the police of being concerned in the receiving of stolen property and in particular of stolen antiques, he was one of a class of persons against whom measures of interception were liable to be employed. 17. In addition, Mr. Malone believed that his telephone had been "metered" on behalf of the police by a device which automatically records all numbers dialled. As evidence for this belief, he asserted that when he was charged in March 1977 the premises of about twenty people whom he had recently telephoned were searched by the police. The Government affirmed that the police had neither caused the applicant ’ s telephone calls to be metered nor undertaken the alleged or any search operations on the basis of any list of numbers obtained from metering. 18. In September 1978, the applicant requested the Post Office and the complaints department of the police to remove suspected listening devices from his telephone. The Post Office and the police both replied that they had no authority in the matter. | Charged with a number of offences relating to dishonest handling of stolen goods, the applicant complained in particular of the interception of his postal and telephone communications by or on behalf of the police, and of the “metering” of his telephone (a process involving the use of a device which registers the numbers dialled on a particular telephone and the time and duration of each call). |
1,003 | Cases concerning the war in Bosnia and Herzegovina | I. THE CIRCUMSTANCES OF THE CASE A. Relevant background 6. After its declaration of independence on 6 March 1992, a brutal war started in Bosnia and Herzegovina. It would appear that more than 100,000 people were killed and more than two million people were displaced. It is estimated that almost 30,000 people went missing and that one third of them is still missing [1]. The major parties to the conflict were the ARBH (mostly made up of Bosniacs [2] and loyal to the central authorities of Bosnia and Herzegovina ), the HVO (mostly made up of Croats) and the VRS (mostly made up of Serbs). The conflict came to an end on 14 December 1995 when the General Framework Agreement for Peace (“the Dayton Peace Agreement”) entered into force. In accordance with that Agreement, Bosnia and Herzegovina consists of two Entities: the Federation of Bosnia and Herzegovina and the Republika Srpska. The Dayton Peace Agreement failed to resolve the Inter-Entity Boundary Line in the Brčko area, but the parties agreed to a binding arbitration in this regard under UNCITRAL rules (Article V of Annex 2 to the Dayton Peace Agreement). The Brčko District, under the exclusive sovereignty of the State and international supervision, was formally inaugurated on 8 March 2000. 7. In response to atrocities then taking place in Bosnia and Herzegovina, on 25 May 1993 the United Nations Security Council passed resolution 827 establishing the International Criminal Tribunal for the former Yugoslavia (“the ICTY”) headquartered in The Hague. Although the ICTY and national courts have concurrent jurisdiction over serious violations of international humanitarian law committed in the former Yugoslavia, the ICTY can claim primacy and may take over national investigations and proceedings at any stage if this proves to be in the interest of international justice. It can also refer its cases to competent national authorities in the former Yugoslavia. More than 60 individuals have been convicted and currently more than 40 people are in different stages of proceedings before the ICTY. Two accused are still at large ( Mr Goran Hadžić and Mr Ratko Mladić ). 8. Furthermore, the International Commission on Missing Persons (“the ICMP”) was established at the initiative of United States President Clinton in 1996. It is currently headquartered in Sarajevo. In addition to its work in the former Yugoslavia, the ICMP is now actively involved in helping governments and other institutions in various parts of the world address social and political issues related to missing persons and establish effective identification systems in the wake of conflict or natural disaster. Reportedly, the ICMP has so far identified by DNA around 13,000 missing persons in Bosnia and Herzegovina, whereas local authorities have identified by traditional methods around 7,000 missing persons. 9. After the war, the ARBH, HVO and VRS forces merged into the Armed Forces of Bosnia and Herzegovina. B. The present case 10. The applicant was born in 1967 and lives in Sarajevo. 11. The applicant ’ s husband, Mr Avdo Palić, was a military commander of the ARBH forces in the United Nations “safe area” of Žepa [3] during the war. On 27 July 1995, shortly after the VRS forces had taken control of that area, Mr Palić went to negotiate the terms of surrender with the VRS forces and disappeared. 12. Following many fruitless attempts to obtain any official news about her husband, on 18 November 1999 the applicant lodged an application against the Republika Srpska with the Human Rights Chamber, a domestic human-rights body set up by Annex 6 to the Dayton Peace Agreement. 13. On 5 September 2000 the Human Rights Chamber held a public hearing and heard several witnesses, including Mr Abdurahman Malkić and Mr Sado Ramić who had been detained together with Mr Palić in a military prison in Bijeljina in August 1995. The Republika Srpska maintained at the hearing that it had no knowledge of the arrest and detention of Mr Palić. 14. In its decision of 9 December 2000, the Human Rights Chamber held that Mr Palić had been a victim of “ enforced disappearance ” within the meaning of the Declaration on the Protection of All Persons from Enforced Disappearance [4] and found a breach of Articles 2, 3 and 5 of the Convention in respect of Mr Palić and Articles 3 and 8 of the Convention in respect of the applicant. The Republika Srpska was ordered: (a) to carry out immediately a full investigation capable of exploring all the facts regarding the fate of Mr Palić with a view to bringing the perpetrators to justice; (b) to release Mr Palić, if still alive, or to make available his mortal remains to the applicant; and (c) to make all information about the fate and whereabouts of Mr Palić known to the applicant. The applicant was awarded, for non-pecuniary damage, 15,000 convertible marks ( BAM – 7,6 69 euros (EUR) ) and, in respect of her husband (which sum was to be held by the applicant for her husband or his heirs), BAM 50,000 ( EUR 25,5 65 ). The decision was delivered on 11 January 2001 and entered into force on 8 March 2001 when the full Chamber rejected the Republika Srpska ’ s request for review. 15. On 14 November 2001 the Republika Srpska acknowledged that Mr Palić had been held in Vanekov mlin, a military prison in Bijeljina administered by the VRS forces, between 4 August and 5 September 1995 and that on the latter date Mr Dragomir Pećanac, Security Officer of the Main Staff of the VRS, had taken Mr Palić from that prison. 16. Having found that Mr Pećanac had meanwhile settled in Serbia, in February 2002 the Republika Srpska authorities issued a domestic arrest warrant against him. In March and April 2002 they interviewed the entire war-time personnel of Vanekov mlin, including its governor. 17. On 12 June 2003 the Bijeljina District Prosecutor (answerable to the Prosecutor of the Republika Srpska ) asked the State Prosecutor to take over this case. On 25 December 2003 the latter decided that the case should remain with the Bijeljina District Prosecutor and returned the case file. 18. On 7 September 2005 the Human Rights Commission, which had replaced the Human Rights Chamber, rendered another decision in this case : while noting that the monetary award had been paid, it held that the decision of 9 December 2000 had not yet been fully enforced. The Republika Srpska was given an additional three-month period in which to do so. 19. From October until December 2005 the authorities of the Republika Srpska and Serbia, at the request of the Republika Srpska, interviewed eighteen people in connection with this case, including Mr Pećanac. 20. On 16 January 2006 the Human Rights Commission repeated in another decision that the core element of the decision of 9 December 2000 had not been enforced: the Republika Srpska had not released Mr Palić, if still alive, or otherwise had not made available his mortal remains to the applicant and no prosecution had been brought. This decision was submitted to the State Prosecutor ( non-enforcement of the decisions of the Human Rights Chamber constitutes a criminal offence, see paragraph 36 below ). 21. On 25 January 2006 the Republika Srpska, at the request of the High Representative [5], established an ad hoc commission to investigate this case. It included Mr Milorad Bukva who had allegedly attended the meeting of 27 July 1995 mentioned in paragraph 11 above ( see paragraph 61 below). The applicant appointed her representative to that commission. 22. On 17 March 2006 the Sarajevo Municipal Court, at the applicant ’ s request, issued a declaration of presumed death with respect to Mr Palić (see paragraph 39 below). 23. On 20 April 2006 the ad hoc commission adopted a report. Having interviewed numerous people, it established that Mr Palić had been captured by the VRS forces ( that is, by Mr Radomir Furtula of the Rogatica Brigade) and handed over to Mr Zdravko Tolimir, Assistant Commander for Intelligence and Security of the Main Staff of the VRS. By order of Mr Mladić, the Commander of the VRS, he was held in a private flat in Rogatica (belonging to Mr Zoran Čarkić, Security Officer of the Rogatica Brigade) for a week or so and then in Vanekov mlin, the military prison mentioned above. He was interrogated daily by security officers of the VRS. It was also established that Mr Pećanac and his driver, Mr Željko Mijatović, had taken Mr Palić from that prison on the night of 4/5 September 1995. While questioned by the Serbian authorities, at the request of the Republika Srpska, Mr Pećanac and Mr Mijatović said that they had taken Mr Palić to Han Pijesak and handed him over to the late Mr Jovo Marić. However, the report established that Mr Marić had not been in Han Pijesak at that time. 24. On 13 December 2006 the Prime Minister of the Republika Srpska established another ad hoc commission to investigate this case. He also met the applicant who appointed her representative to that commission. 25. On 20 December 2006 the Court of Bosnia and Herzegovina issued international arrest warrants against Mr Pećanac and Mr Mijatović on suspicion of having committed an enforced disappearance as a crime against humanity. 26. In March 2007 the second ad hoc commission established that Mr Palić had been buried in a mass grave in Rasadnik near Rogatica and, having searched the area in vain, that he could have been transferred to a secondary mass grave in Vragolovi near Rogatica (where nine unidentified bodies had been exhumed on 12 November 2001) or elsewhere in that area. 27. On 31 May 2007 the authorities of Bosnia and Herzegovina arrested Mr Tolimir and transferred him to the custody of the ICTY. 28. On 5 August 2009 the ICMP established that one of the unidentified bodies from the mass grave in Vragolovi (which had been exhumed on 12 November 2001 and reburied in a nameless grave in Visoko on 14 March 2002) was that of Mr Palić. The Sarajevo Cantonal Court then ordered that the body be exhumed. On 20 August 2009 the ICMP confirmed through DNA tests that the body indeed belonged to Mr Palić. 29. On 26 August 2009 Mr Palić was finally buried on the grounds of the Ali Pasha ’ s Mosque in Sarajevo with military honours. 30. On 16 December 2009 the ICTY amended the indictment against Mr Tolimir. He is charged with the participation in joint criminal enterprise to forcibly transfer and deport the Muslim populations of Srebrenica and Žepa, a natural and foreseeable consequence of which was the killing of Mr Palić and two other Muslim leaders from Žepa by the VRS ( the third category of joint criminal enterprise [6] ). His trial commenced on 26 February 2010. 31. Mr Pećanac and Mr Mijatović live in Serbia. They were granted Serbian citizenship on 4 January 1999 and 17 September 1998, respectively. | This case concerned the disappearance during the war in Bosnia and Herzegovina of a military commander leading one of the local forces at the time. In July 1995, after the opposing local forces (the VRS, mostly made up of Serbs) had taken control of the area of Žepa in Bosnia and Herzegovina, he went to negotiate the terms of surrender of his forces, and disappeared. His wife attempted numerous times to find out about his fate from official sources, without success. She complained that Bosnia and Herzegovina failed to investigate the disappearance and death of her husband and that she had suffered as a result for many years. |
230 | The definition of bis | I. THE CIRCUMSTANCES OF THE CASE 12. The applicant was born in 1961 and is currently serving a prison sentence in Lepoglava State Prison. A. The first set of criminal proceedings against the applicant (no. K ‑ 4/97) 13. On 19 December 1991 the Osijek Police Department lodged a criminal complaint against the applicant and five other persons with the Osijek County Court, alleging that the applicant, a member of the Croatian army, had killed several civilians. 14. On 20 April 1993 the Osijek Military Prosecutor indicted the applicant before the Osijek County Court on charges of murder, inflicting grievous bodily harm, causing a risk to life and assets, and theft. The relevant part of the indictment reads : “ The first accused, Fred Marguš 1. On 20 November 1991 at about 7 a.m. in Čepin ... fired four times at S.B. with an automatic gun ... as a result of which S.B. died; ... 2. At the same time and place as under (1) ... fired several times at V.B. with an automatic gun ... as a result of which V.B. died; ... 3. On 10 December 1991 took N.V. to the ‘ Vrbik ’ forest between Čepin and Ivanovac ... and fired at him twice with an automatic gun ... as a result of which N.V. died; ... 4. At the same place and time as under (3) fired at Ne.V. with an automatic gun ... as a result of which she died; ... 6. On 28 August 1991 at about 3 a.m. threw an explosive device into business premises in Čepinski Martinovec ... causing material damage; ... 7. On 18 November 1991 at 00.35 a.m. in Čepin placed an explosive device in a house ... causing material damage ...; ... 8. On 1 August 1991 at 3.30 p.m. in Čepin ... fired at R.C., causing him slight bodily injury and then ... kicked V.Ž ... causing him grievous bodily injury ... and also kicked R.C. ... causing him further slight bodily injuries ...; ... 9. Between 26 September and 5 October 1991 in Čepin ... stole several guns and bullets ...; ...” He was further charged with appropriating several tractors and other machines belonging to other persons. 15. On 25 January 1996 the Osijek Deputy Military Prosecutor dropped the charges under counts 3, 4, 6, 7 and 9 of the indictment as well as the charges of appropriating goods belonging to others. A new count was added, by which the applicant was charged with having fired, on 20 November 1991 at about 7 a.m. in Čepin, at a child, Sl.B ., causing him grievous bodily injury. The former count 8 of the indictment thus became count 4. 16. On 24 September 1996 the General Amnesty Act was enacted. It stipulated that a general amnesty was to be applied in respect of all criminal offences committed in connection with the war in Croatia between 17 August 1990 and 23 August 1996, save in respect of those acts which amounted to the gravest breaches of humanitarian law or to war crimes, including the crime of genocide (see paragraph 2 7 below). 17. On 24 June 1997 the Osijek County Court, sitting as a panel presided over by Judge M.K., terminated the proceedings pursuant to the General Amnesty Act. The relevant part of this ruling reads: “The Osijek County Court ... on 24 June 1997 has decided as follows: the criminal proceedings against the accused Fred Marguš on two charges of murder ... inflicting grievous bodily harm ... and causing a risk to life and assets ... instituted on the indictment lodged by the Osijek County State Attorney ’ s Office ... on 10 February 1997 are to be concluded under section 1(1) and (3) and section 2(2) of the General Amnesty Act. ... Reasoning The indictment of the Osijek Military State Attorney ’ s Office no. Kt-1/93 of 20 April 1993 charged Fred Marguš with three offences of aggravated murder under Article 35 § 1 of the Criminal Code; one offence of aggravated murder under Article 35 § 2(2) of the Criminal Code; two criminal offences of causing a risk to life and assets ... under Article 153 § 1 of the Criminal Code; one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code; one criminal offence of theft of weapons or other fighting equipment under Article 223 §§ 1 and 2 of the Criminal Code; and one criminal offence of aggravated theft under Article 131 § 2 of the Criminal Code ... The above indictment was significantly altered at a hearing held on 25 January 1996 before the Osijek Military Court, when the Deputy Military Prosecutor withdrew some of the charges and altered the factual and legal description and the legal classification of some of the offences. Thus, the accused Fred Marguš was indicted for two offences of murder under Article 34 § 1 of the Criminal Code, one criminal offence of inflicting grievous bodily harm under Article 41 § 1 of the Criminal Code and one criminal offence of causing a risk to life and assets ... under Article 146 § 1 of the Criminal Code ... After the military courts had been abolished, the case file was forwarded to the Osijek County State Attorney ’ s Office, which took over the prosecution on the same charges and asked that the proceedings be continued before the Osijek County Court. The latter forwarded the case file to a three-judge panel in the context of application of the General Amnesty Act. After considering the case file, this panel has concluded that the conditions under section 1(1) and (3) and section 2(2) of the General Amnesty Act have been met and that the accused is not excluded from amnesty. The above-mentioned Act provides for a general amnesty in respect of criminal offences committed during the aggression, armed rebellion or armed conflicts .... in the Republic of Croatia. The general amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. The general amnesty excludes only the perpetrators of the gravest breaches of humanitarian law which amount to war crimes, and certain criminal offences listed in section 3 of the General Amnesty Act. It also excludes the perpetrators of other criminal offences under the Criminal Code ... which were not committed during the aggression, armed rebellion or armed conflicts and which are not connected with the aggression, armed rebellion or armed conflicts in Croatia. The accused, Fred Marguš, is indicted for three criminal offences committed in Čepin on 20 November 1991 and one criminal offence committed in Čepin on 1 August 1991. The first three of these offences concern the most difficult period and the time of the most serious attacks on Osijek and Eastern Croatia immediately after the fall of Vukovar, and the time of the most severe battles for Laslovo. In those battles, the accused distinguished himself as a combatant, showing exceptional courage and being recommended for promotion to the rank of lieutenant by the commander of the Third Battalion of the 106th Brigade of the Croatian army, who was his superior officer at that time. In the critical period concerning the first three criminal offences, the accused was acting in his capacity as a member of the Croatian army; in that most difficult period, acting as commander of a unit, he tried to prevent the fall of a settlement into enemy hands, when there was an immediate danger of this happening. The fourth criminal offence was committed on 1 August 199 1, when the accused was acting in his capacity as an on-duty member of the Reserve Forces in Čepin and was dressed in military camouflage uniform and using military weapons. ... The actions of the accused, in view of the time and place of the events in issue, were closely connected with the aggression, armed rebellion and armed conflicts in Croatia, and were carried out during the period referred to in the General Amnesty Act. ... Against this background, this court finds that all the statutory conditions for application of the General Amnesty Act have been met ...” 18. On an unspecified date the State Attorney lodged a request for the protection of legality ( zahtjev za zaštitu zakonitosti ) with the Supreme Court, asking it to establish that section 3(2) of the General Amnesty Act had been violated. 19. On 19 September 2007 the Supreme Court, when deciding upon the above request, established that the above ruling of the Osijek County Court of 24 June 1997 violated section 3(2) of the General Amnesty Act. The relevant parts of the Supreme Court ’ s ruling read: “... Section 1(1) of the General Amnesty Act provides for a general amnesty from criminal prosecution and trial for the perpetrators of criminal offences committed in connection with the aggression, armed rebellion or armed conflicts ... in Croatia. Under paragraph 3 of the same section the amnesty concerns criminal offences committed between 17 August 1990 and 23 August 1996. ... For the correct interpretation of these provisions – apart from the general condition that the criminal offence in question had to have been committed in the period between 17 August 1990 and 23 August 1996 (which has been met in the present case) – there must exist a direct and significant connection between the criminal offence and the aggression, armed rebellion or armed conflicts. This interpretation is in accordance with the general principle that anyone who commits a criminal offence has to answer for it. Therefore, the above provisions have to be interpreted in a sensible manner, with the necessary caution, so that the amnesty does not become a contradiction of itself and call into question the purpose for which the Act in question was enacted. Hence, the expression ‘ in connection with the aggression, armed rebellion or armed conflicts ’ used in the General Amnesty Act, which does not specifically define the nature of that connection, has to be interpreted to mean that the connection must be direct and significant. ... Part of the factual description of the criminal offences with which the accused Fred Marguš is charged ... which suggests some connection with the aggression against the Republic of Croatia or armed rebellion and armed conflicts in Croatia, relates to the arrival of the victims of these offences – S.B., V.B. and the minor Sl.B. – in Čepin, together with their neighbours, after they had all fled the village of Ivanovac on account of the attack by the so-called ‘ Y[ ugoslav ] P[ eoples ’ ] A[ rmy ] ’. It should be stressed that it is not in dispute that the accused Fred Marguš was a member of the Croatian army. However, these circumstances are not such as to amount to a direct link with the aggression, armed rebellion or armed conflicts in Croatia which is required for the General Amnesty Act to apply. The factual description of the criminal offences under count 4 of the indictment states that the accused committed these acts as a member of the Reserve Forces in Čepin, after his tour of duty had terminated. This characteristic in itself does not represent a significant link between the criminal offences and the war because, were this to be the case, the amnesty would encompass all criminal offences committed between 27 August 1990 and 23 August 1996 by members of the Croatian army or the enemy units (save for those specifically listed in section 3(1) of the General Amnesty Act); this was certainly not the intention of the legislature. Finally, the accused ’ s war career, described in detail in the impugned ruling, cannot be a criterion for application of the General Amnesty Act ... The factual description of the criminal offences in the indictment ... does not show that the acts in question were committed during the aggression, armed rebellion or armed conflicts in Croatia, or that they were committed in connection with them. ...” B. The second set of criminal proceedings against the applicant (no. K-33/06) 20. On 26 April 2006 the Osijek County State Attorney ’ s Office indicted the applicant on charges of war crimes against the civilian population. The proceedings were conducted by a three-judge panel of the Osijek County Court, including Judge M.K. During the entire proceedings the applicant was represented by a lawyer. 21. A concluding hearing was held on 19 March 2007 in the presence of, inter alia, the applicant and his defence lawyer. The applicant was removed from the courtroom during the closing arguments of the parties. The applicant ’ s lawyer remained in the courtroom and presented his closing arguments. The relevant part of the written record of that hearing reads as follows: “The President of the panel notes that the accused Marguš interrupted the Osijek County Deputy State Attorney ( ‘ the Deputy State Attorney ’ ) in his closing arguments and was warned by the panel to calm down; the second time he interrupted the Deputy State Attorney he was warned orally. After the President of the panel warned the accused Marguš orally, the latter continued to comment on the closing arguments of the Deputy State Attorney. The panel therefore decides, and the president of the panel orders, that the accused Marguš be removed from the courtroom until the pronouncement of the judgment. ...” 22. The applicant was subsequently removed from the courtroom and the Deputy State Attorney, the lawyers for the victims, the defence lawyers and one of the accused gave their closing arguments. 23. The pronouncement of the judgment was scheduled for 21 March 2007 and the hearing was concluded. The applicant was present at the pronouncement of the judgment. He was found guilty as charged and sentenced to fourteen years ’ imprisonment. The relevant part of the judgment reads as follows: “... The accused Fred Marguš ... and the accused T.D. ... are guilty [in that] in the period between 20 and 25 November 1991 in Čepin and its surroundings, contrary to Article 3 § 1 of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and Article 4 §§ 1 and 2(a) and Article 13 of the Protocol Additional to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, while defending that territory from armed attacks by the local rebel Serb population and the so-called Yugoslav People ’ s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, Fred Marguš, in his capacity as the commander of Unit 2 in the 3rd Corps of the 130th brigade of the Croatian army, and the accused T.D., as a member of the same Unit under the command of Fred Marguš, [acted as follows] with the intention of killing Serb civilians; the accused Fred Marguš (a) on 20 November 1991 at about 8 a.m. in Čepin, recognised V.B. and S.B. who were standing ... in front of the Fire Brigade Headquarters in Ivanovac and were fleeing their village because of the attacks by the Yugoslav People ’ s Army, ... fired at them with an automatic gun ... which caused S.B. to sustain a gunshot wound to the head ... and neck as a result of which S.B. immediately died, while V.B. was wounded and fell to the ground. The accused then drove away and soon afterwards came back, and, seeing that V.B. was still alive and accompanied by his nine-year-old son Sl.B. and ... his wife M.B., again fired the automatic gun at them, and thus shot V.B. twice in the head ... twice in the arm ... as a result of which V.B. soon died while Sl.B. was shot in the leg ... which amounted to grievous bodily harm; (b) in the period between 22 and 24 November 1991 in Čepin, arrested N.V. and Ne.V ., threatening them with firearms, appropriated their Golf vehicle ... took them to the basement of a house ... where he tied them by ropes to chairs and kept them locked in without food or water and, together with the members of his Unit ... beat and insulted them, asked them about their alleged hostile activity and possession of a radio set, and during that time prevented other members of the Unit from helping them ... after which he took them out of Čepin to a forest ... where they were shot with several bullets from firearms ... as a result of which N.V. ... and Ne.V. died; (c) on 23 November 1991 at about 1.30 p.m. at the coach terminal in Čepin, arrested S.G. and D.G. and their relative Lj.G. and drove them to a house ... tied their hands behind their backs and, together with the late T.B., interrogated them about their alleged hostile activity and in the evening, while they were still tied up, drove them out of Čepin ... where he shot them ... as a result of which they died; the accused Fred Marguš and T.D. [acting] together (d) on 25 November 1991 at about 1 p.m. in Čepin, on seeing S.P. driving his Golf vehicle ... stopped him at the request of Fred Marguš ... ... and drove him to a field ... where ... Fred Marguš ordered T.D. to shoot S.P., [an order] which T.D. obeyed, shooting S.P. once ... after which Fred Marguš shot him several times with an automatic gun ... as a result of which S.P. ... died and Fred Marguš appropriated his vehicle. ...” 24. The applicant ’ s conviction was upheld by the Supreme Court on 19 September 2007 and his sentence was increased to fifteen years ’ imprisonment. The relevant part of the judgment by the Supreme Court reads as follows: “Under Article 36 § 1(5) of the Code of Criminal Procedure (CCP), a judge is exempted from performing judicial functions if he or she participated in the same case in the adoption of a ruling of a lower court or if he participated in adopting the impugned ruling. It is true that Judge M.K. participated in the proceedings in which the impugned judgment was adopted. He was the President of a panel of the Osijek County Court which adopted the ruling ... of 24 June 1997 by which the proceedings against the accused Fred Marguš were terminated under section 1(1) and (3) and section 2(2) of the General Amnesty Act ... Even though both sets of proceedings were instituted against the same accused, it was not the same case. The judge in question participated in two different cases before the Osijek County Court against the same accused. In the case in which the present appeal has been lodged, Judge M.K. did not participate in adopting any decision of a lower court or in a decision which is the subject of an appeal or an extraordinary remedy. ... The accused incorrectly argued that the first-instance court had acted contrary to Article 346 § 4 and Article 347 §§ 1 and 4 of the CCP when it held the concluding hearing in his absence and in the absence of his defence lawyer because it had removed him from the courtroom when the parties were presenting their closing arguments. Thus, he claimed, he had been prevented from giving his closing arguments. Furthermore, he had not been informed about the conduct of the hearing in his absence, and the decision to remove him from the courtroom had not been adopted by the trial panel. Contrary to the allegations of the accused, the written record of the hearing held on 19 March 2007 shows that the accused Fred Marguš interrupted the [Osijek] County Deputy State Attorney in his closing arguments and was twice warned by the President of the trial panel. Since he continued with the same behaviour, the trial panel decided to remove him from the courtroom ... Such action by the trial court is in conformity with Article 300 § 2 of the CCP. The accused Fred Marguš started to disturb order in the courtroom during the closing arguments of the [Osijek County Deputy] State Attorney and persisted in doing so, after which he was removed from the courtroom by a decision of the trial panel. He was again present in the courtroom when judgment was pronounced on 21 March 2007. Since the trial court complied fully with Article 300 § 2 of the CCP, the accused ’ s appeal is unfounded. In the case in issue there has been no violation of the defence rights, and the removal of the accused from the courtroom during the closing arguments of the parties had no effect on the judgment. ... The accused Fred Marguš further argues ... that the impugned judgment violated the ne bis in idem principle ... because the proceedings had already been discontinued in respect of some of the charges giving rise to the impugned judgment ... ... It is true that criminal proceedings were conducted before the Osijek County Court under the number K-4/97 against the accused Fred Marguš in respect of, inter alia, four criminal offences ... of murder ... committed against S.B., V.B., N.V. and Ne.V, as well as the criminal offence ... of creating a risk to life and assets ... These proceedings were terminated by final ruling of the Osijek County Court no. Kv - 99/97 (K-4/97) of 24 June 1997 on the basis of the General Amnesty Act ... Despite the fact that the consequences of the criminal offences which were the subject of the proceedings conducted before the Osijek County Court under the number K - 4/97, namely the deaths of S.B., V.B., N.V. and Ne.V. and the grievous bodily injury of Sl.B ., are also part of the factual background [to the criminal offences assessed] in the proceedings in which the impugned judgment has been adopted, the offences [tried in the two sets of criminal proceedings in issue] are not the same. Comparison between the factual background [to the criminal offences assessed] in both sets of proceedings shows that they are not identical. The factual background [to the offences referred to] in the impugned judgment contains a further criminal element, significantly wider in scope than the one forming the basis for the proceedings conducted before the Osijek County Court under the number K-4/97. [In the present case] the accused Fred Marguš is charged with violation of the rules of the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 and of the Protocol Additional to the Geneva Conventions of 12 August 1949 relative to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977, in that, in the period between 20 and 25 November 1991, while defending that territory from armed attacks by the local rebel Serb population and the so-called Yugoslav People ’ s Army in their joint attack on the constitutional legal order and territorial integrity of the Republic of Croatia, and in violation of the rules of international law, he killed and tortured civilians, treated them in an inhuman manner, unlawfully arrested them, ordered the killing of a civilian and robbed the assets of the civilian population. The above acts constitute a criminal offence against the values protected by international law, namely a war crime against the civilian population under Article 120 § 1 of the Criminal Code. Since the factual background to the criminal offence in issue, and its legal classification, differ from those which were the subject of the earlier proceedings, such that the scope of the charges against the accused Fred Marguš is significantly wider and different from the previous case (case-file no. K-4/97), the matter is not res judicata ...” 25. A subsequent constitutional complaint by the applicant was dismissed by the Constitutional Court on 30 September 2009. The Constitutional Court endorsed the views of the Supreme Court. I. The United Nations Human Rights Committee 1. General Comment No. 20, Article 7 (Forty-fourth session, 1992) 48. The United Nations Human Rights Committee noted in 1992 in its General Comment No. 20 on Article 7 of the International Covenant that some States had granted amnesty in respect of acts of torture. It went on to state that “[a] mnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible”. 2. Concluding observations, Lebanon, 1 April 1997 49. Paragraph 12 reads as follows: “12. The Committee notes with concern the amnesty granted to civilian and military personnel for human rights violations they may have committed against civilians during the civil war. Such a sweeping amnesty may prevent the appropriate investigation and punishment of the perpetrators of past human rights violations, undermine efforts to establish respect for human rights, and constitute an impediment to efforts undertaken to consolidate democracy.” 3. Concluding observations, Croatia, 30 April 2001 50. Paragraph 11 reads as follows: “The Committee is concerned with the implications of the Amnesty Law. While that law specifically states that the amnesty does not apply to war crimes, the term ‘ war crimes ’ is not defined and there is a danger that the law will be applied so as to grant impunity to persons accused of serious human rights violations. The Committee regrets that it was not provided with information on the cases in which the Amnesty Law has been interpreted and applied by the courts. The State party should ensure that in practice the Amnesty Law is not applied or utilized for granting impunity to persons accused of serious human rights violations. ” 4. General Comment No. 31 [80], The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, 29 March 2004 “18. Where the investigations referred to in paragraph 15 reveal violations of certain Covenant rights, States Parties must ensure that those responsible are brought to justice. As with failure to investigate, failure to bring to justice perpetrators of such violations could in and of itself give rise to a separate breach of the Covenant. These obligations arise notably in respect of those violations recognized as criminal under either domestic or international law, such as torture and similar cruel, inhuman and degrading treatment (article 7), summary and arbitrary killing (article 6) and enforced disappearance (articles 7 and 9 and, frequently, 6). Indeed, the problem of impunity for these violations, a matter of sustained concern by the Committee, may well be an important contributing element in the recurrence of the violations. When committed as part of a widespread or systematic attack on a civilian population, these violations of the Covenant are crimes against humanity (see Rome Statute of the International Criminal Court, article 7). Accordingly, where public officials or State agents have committed violations of the Covenant rights referred to in this paragraph, the States Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with certain amnesties (see General Comment 20 (44)) and prior legal immunities and indemnities. Furthermore, no official status justifies persons who may be accused of responsibility for such violations being held immune from legal responsibility. ...” J. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [5] 51. The relevant parts of this Convention provide: Article 4 “1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture. 2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.” Article 7 “1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution. ... ” Article 12 “Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction.” Article 13 “Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.” Article 14 “1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation. 2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.” K. The United Nations Commission on Human Rights 52. The relevant parts of the resolutions on impunity read: 1. Resolution 2002/79, 25 April 2002, and Resolution 2003/72, 25 April 2003 “The Commission on Human Rights, ... 2. Also emphasizes the importance of taking all necessary and possible steps to hold accountable perpetrators, including their accomplices, of violations of international human rights and humanitarian law, recognizes that amnesties should not be granted to those who commit violations of international humanitarian and human rights law that constitute serious crimes and urges States to take action in accordance with their obligations under international law; ... ” 2. Resolution 2004/72, 21 April 2004 “The Commission on Human Rights, ... 3. Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities; ... ” 3. Resolution 2005/81, 21 April 2005 “The Commission on Human Rights, ... 3. Also recognizes that amnesties should not be granted to those who commit violations of human rights and international humanitarian law that constitute crimes, urges States to take action in accordance with their obligations under international law and welcomes the lifting, waiving, or nullification of amnesties and other immunities, and recognizes as well the Secretary-General ’ s conclusion that United Nations ‑ endorsed peace agreements can never promise amnesties for genocide, crimes against humanity, war crimes, or gross violations of human rights; ...” L. The European Parliament Resolution A3-0056/93, 12 March 1993 53. The relevant text of the Resolution on human rights in the world and Community human rights policy for the years 1991 to 1992 reads: “The European Parliament, ... 7. Believes that the problem of impunity ... can take the form of amnesty, immunity, extraordinary jurisdiction and constrains democracy by effectively condoning human rights infringements and distressing victims; 8. Affirms that there should be no question of impunity for those responsible for war crimes in the former Yugoslavia ...” M. The United Nations Special Rapporteur on Torture Fifth report, UN Doc. E/CN.4/1998/38, 24 December 1997 54. In 1998, in the conclusions and recommendations of his fifth report on the question of the human rights of all persons subjected to any form of detention or imprisonment, in particular, torture and other cruel, inhuman or degrading treatment or punishment, the Special Rapporteur of the United Nations Commission on Human Rights stated with respect to the Draft Statute for an International Criminal Court: “228. In this connection, the Special Rapporteur is aware of suggestions according to which nationally granted amnesties could be introduced as a bar to the proposed court [ ‘ s ] jurisdiction. He considers any such move subversive not just of the project at hand, but of international legality in general. It would gravely undermine the purpose of the proposed court, by permitting States to legislate their nationals out of the jurisdiction of the court. It would undermine international legality, because it is axiomatic that States may not invoke their own law to avoid their obligations under international law. Since international law requires States to penalize the types of crime contemplated in the draft statute of the court in general, and torture in particular, and to bring perpetrators to justice, the amnesties in question are, ipso facto, violations of the concerned States ’ obligations to bring violators to justice. ...” N. International Criminal Tribunal for the former Yugoslavia 55. The relevant part of the Furundžija case (judgment of 10 December 1998) reads: “155. The fact that torture is prohibited by a peremptory norm of international law has other effects at the inter-state and individual levels. At the inter-state level, it serves to internationally de-legitimise any legislative, administrative or judicial act authorising torture. It would be senseless to argue, on the one hand, that on account of the jus cogens value of the prohibition against torture, treaties or customary rules providing for torture would be null and void ab initio, and then be unmindful of a State say, taking national measures authorising or condoning torture or absolving its perpetrators through an amnesty law. If such a situation were to arise, the national measures, violating the general principle and any relevant treaty provision, would produce the legal effects discussed above and in addition would not be accorded international legal recognition. Proceedings could be initiated by potential victims if they had locus standi before a competent international or national judicial body with a view to asking it to hold the national measure to be internationally unlawful; or the victim could bring a civil suit for damage in a foreign court, which would therefore be asked inter alia to disregard the legal value of the national authorising act. What is even more important is that perpetrators of torture acting upon or benefiting from those national measures may nevertheless be held criminally responsible for torture, whether in a foreign State, or in their own State under a subsequent regime. In short, in spite of possible national authorisation by legislative or judicial bodies to violate the principle banning torture, individuals remain bound to comply with that principle. As the International Military Tribunal at Nuremberg put it: ‘ individuals have international duties which transcend the national obligations of obedience imposed by the individual State. ’ ” O. American Convention on Human Rights [6] 56. The relevant part of this Convention reads as follows: Article 1. Obligation to Respect Rights “1. The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. 2. For the purposes of this Convention, ‘ person ’ means every human being.” P. Inter-American Commission on Human Rights 1. Case 10.287 (El Salvador), Report No. 26/92 of 24 September 1992 57. In 1992, in a report on a case with respect to the Las Hojas massacres in El Salvador in 1983 during which about seventy-four persons were allegedly killed by members of the Salvadoran armed forces with the participation of members of the Civil Defence, and which had led to a petition before the Inter-American Commission on Human Rights, the latter held that: “... The application of [El Salvador ’ s 1987 Law on Amnesty to Achieve National Reconciliation] constitutes a clear violation of the obligation of the Salvadoran Government to investigate and punish the violations of the rights of the Las Hojas victims, and to provide compensation for damages resulting from the violations ... The present amnesty law, as applied in these cases, by foreclosing the possibility of judicial relief in cases of murder, inhumane treatment and absence of judicial guarantees, denies the fundamental nature of the most basic human rights. It eliminates perhaps the single most effective means of enforcing such rights, the trial and punishment of offenders. ” 2. Report on the situation of human rights in El Salvador, OEA/ Ser.L /V /II.85 Doc. 28 rev. ( 11 February 1994) 58. In 1994, in a report on the situation of human rights in El Salvador, the Inter-American Commission on Human Rights stated, with regard to El Salvador ’ s General Amnesty Law for Consolidation of Peace, as follows: “ ... regardless of any necessity that the peace negotiations might pose and irrespective of purely political considerations, the very sweeping General Amnesty Law [for Consolidation of Peace] passed by El Salvador ’ s Legislative Assembly constitutes a violation of the international obligations it undertook when it ratified the American Convention on Human Rights, because it makes possible a ‘ reciprocal amnesty ’ without first acknowledging responsibility ...; because it applies to crimes against humanity, and because it eliminates any possibility of obtaining adequate pecuniary compensation, primarily for victims.” 3. Case 10.480 (El Salvador), Report No. 1/99 of 27 January 1999 59. In 1999, in a report on a case concerning El Salvador ’ s 1993 General Amnesty Law for Consolidation of Peace, the Inter-American Commission on Human Rights stated: “113. The Commission should emphasize that [this law] was applied to serious human rights violations in El Salvador between January 1, 1980, and January 1, 1992, including those examined and established by the Truth Commission. In particular, its effect was extended, among other things, to crimes such as summary executions, torture, and the forced disappearance of persons. Some of these crimes are considered of such gravity as to have justified the adoption of special conventions on the subject and the inclusion of specific measures for preventing impunity in their regard, including universal jurisdiction and inapplicability of the statute of limitations. ... ... 115. The Commission also notes that Article 2 of [this law] was apparently applied to all violations of common Article 3 [of the 1949 Geneva Conventions] and of the [ 1977 Additional ] Protocol II, committed by agents of the State during the armed conflict which took place in El Salvador. ... ... 123. ... in approving and enforcing the General Amnesty Law, the Salvadoran State violated the right to judicial guarantees enshrined in Article 8(1) of the [1969 American Convention on Human Rights], to the detriment of the surviving victims of torture and of the relatives of ..., who were prevented from obtaining redress in the civil courts; all of this in relation to Article 1(1) of the Convention. ... 129. ... in promulgating and enforcing the Amnesty Law, El Salvador has violated the right to judicial protection enshrined in Article 25 of the [1969 American Convention on Human Rights], to the detriment of the surviving victims ...” In its conclusions, the Inter-American Commission on Human Rights stated that El Salvador “ ha[d] also violated, with respect to the same persons, common Article 3 of the Four Geneva Conventions of 1949 and Article 4 of the [ 1977 Additional ] Protocol II”. Moreover, in order to safeguard the rights of the victims, it recommended that El Salvador should “if need be, ... annul that law ex- tunc ”. Q. Inter-American Court of Human Rights 60. In its judgment in Barrios Altos v. Peru ((merits), judgment of 14 March 2001, Series C No. 75 ) involving the question of the legality of Peruvian amnesty laws, the Inter-American Court of Human Rights stated: “41. This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non- derogable rights recognized by international human rights law. 42. The Court, in accordance with the arguments put forward by the Commission and not contested by the State, considers that the amnesty laws adopted by Peru prevented the victims ’ next of kin and the surviving victims in this case from being heard by a judge ...; they violated the right to judicial protection ...; they prevented the investigation, capture, prosecution and conviction of those responsible for the events that occurred in Barrios Altos, thus failing to comply with Article 1(1) of the [1969 American Convention on Human Rights], and they obstructed clarification of the facts of this case. Finally, the adoption of self-amnesty laws that are incompatible with the [1969 American Convention on Human Rights] meant that Peru failed to comply with the obligation to adapt internal legislation that is embodied in Article 2 of the [1969 American Convention on Human Rights]. 43. The Court considers that it should be emphasized that, in the light of the general obligations established in Articles 1(1) and 2 of the [1969 American Convention on Human Rights], the States Parties are obliged to take all measures to ensure that no one is deprived of judicial protection and the exercise of the right to a simple and effective recourse, in the terms of Articles 8 and 25 of the [1969 American Convention on Human Rights]. Consequently, States Parties to the [1969 American Convention on Human Rights] which adopt laws that have the opposite effect, such as self-amnesty laws, violate Articles 8 and 25, in relation to Articles 1(1) and 2 of the [1969 American Convention on Human Rights]. Self-amnesty laws lead to the defenselessness of victims and perpetuate impunity; therefore, they are manifestly incompatible with the aims and spirit of th [ at] Convention. This type of law precludes the identification of the individuals who are responsible for human rights violations, because it obstructs the investigation and access to justice and prevents the victims and their next of kin from knowing the truth and receiving the corresponding reparation. 44. Owing to the manifest incompatibility of self-amnesty laws and the American Convention on Human Rights, the said laws lack legal effect and may not continue to obstruct the investigation of the grounds on which this case is based or the identification and punishment of those responsible, nor can they have the same or a similar impact with regard to other cases that have occurred in Peru, where the rights established in the [1969 American Convention on Human Rights] have been violated.” In his concurring opinion, Judge Antônio A. Cançado Trindade added: “13. The international responsibility of the State for violations of internationally recognized human rights, – including violations which have taken place by means of the adoption and application of laws of self-amnesty, – and the individual penal responsibility of agents perpetrators of grave violations of human rights and of International Humanitarian Law, are two faces of the same coin, in the fight against atrocities, impunity, and injustice. It was necessary to wait many years to come to this conclusion, which, if it is possible today, is also due, – may I insist on a point which is very dear to me, – to the awakening of the universal juridical conscience, as the material source par excellence of International Law itself.” 61. In Almonacid -Arellano et al. v. Chile (preliminary objections, merits, reparations and costs), judgment of 26 September 2006, Series C No. 154, the Inter-American Court of Human Rights noted: “154. With regard to the ne bis in idem principle, although it is acknowledged as a human right in Article 8(4) of the American Convention, it is not an absolute right, and therefore, is not applicable where: i ) the intervention of the court that heard the case and decided to dismiss it or to acquit a person responsible for violating human rights or international law, was intended to shield the accused party from criminal responsibility; ii) the proceedings were not conducted independently or impartially in accordance with due procedural guarantees, or iii) there was no real intent to bring those responsible to justice. A judgment rendered in the foregoing circumstances produces an ‘ apparent ’ or ‘ fraudulent ’ res judicata case. On the other hand, the Court believes that if there appear new facts or evidence that make it possible to ascertain the identity of those responsible for human rights violations or for crimes against humanity, investigations can be reopened, even if the case ended in an acquittal with the authority of a final judgment, since the dictates of justice, the rights of the victims, and the spirit and the wording of the American Convention supersedes the protection of the ne bis in idem principle. 155. In the instant case, two of the foregoing conditions are met. Firstly, the case was heard by courts which did not uphold the guarantees of jurisdiction, independence and impartiality. Secondly, the application of Decree Law No. 2.191 did actually prevent those allegedly responsible from being brought before the courts and favored impunity for the crime committed against Mr. Almonacid -Arellano. The State cannot, therefore, rely on the ne bis in idem principle to avoid complying with the order of the Court .. .” 62. The same approach was followed in La Cantuta v. Peru (merits, reparations and costs), judgment of 29 November 2006, Series C No. 162, the relevant part of which reads as follows: “151. In this connection, the Commission and the representatives have asserted that the State has relied on the concept of double jeopardy to avoid punishing some of the alleged instigators of these crimes; however, double jeopardy does not apply inasmuch as they were prosecuted by a court who had no jurisdiction, was not independent or impartial and failed to meet the requirements for competent jurisdiction. In addition, the State asserted that ‘ involving other people who might be criminally liable is subject to any new conclusions reached by the Ministerio Público [General Attorney ’ s Office] and the Judiciary in investigating the events and meting out punishments ’, and that ‘ the military court ’ s decision to dismiss the case has no legal value for the General Attorney ’ s Office ’ s preliminary investigation. That is, the double jeopardy defense does not apply. ’ 152. This Court had stated earlier in the Case of Barrios Altos that This Court considers that all amnesty provisions, provisions on prescription and the establishment of measures designed to eliminate responsibility are inadmissible, because they are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extra-legal, summary or arbitrary execution and forced disappearance, all of them prohibited because they violate non- derogable rights recognized by international human rights law. 153. Specifically, in relation with the concept of double jeopardy, the Court has recently held that the non bis in idem principle is not applicable when the proceeding in which the case has been dismissed or the author of a violation of human rights has been acquitted, in violation of international law, has the effect of discharging the accused from criminal liability, or when the proceeding has not been conducted independently or impartially pursuant to the due process of law. A judgment issued in the circumstances described above only provides ‘ fictitious ’ or ‘ fraudulent ’ grounds for double jeopardy. 154. Therefore, in its complaint against the alleged instigators of the crimes ..., who were discharged by the military courts, the Procuraduría Ad Hoc (Ad Hoc Prosecutor ’ s Office) deemed it inadmissible to consider the order for dismissal of the case issued by the military judges in the course of a proceeding aimed at granting impunity as a legal obstacle for conducting prosecutions or as a final judgment, since the judges had no jurisdiction and were not impartial, and thus the order may not provide grounds for double jeopardy.” 63. In Anzualdo Castro v. Peru (preliminary objection, merits, reparations and costs), judgment of 22 September 2009, Series C No. 202, the Inter-American Court of Human Rights reiterated that: “182. ... [T]he State must remove all obstacles, both factual and legal, that hinder the effective investigation into the facts and the development of the corresponding legal proceedings, and use all available means to expedite such investigations and proceedings, in order to ensure the non-repetition of facts such as these. Specially, this is a case of forced disappearance that occurred within a context of a systematic practice or pattern of disappearances perpetrated by state agents; therefore, the State shall not be able to argue or apply a law or domestic legal provision, present or future, to fail to comply with the decision of the Court to investigate and, if applicable, criminally punish th [ ose ] responsible for the facts. For this reason and as ordered by this Tribunal since the delivery of the Judgment in the case of Barrios Altos v. Peru, the State can no longer apply amnesty laws, which lack legal effects, present or future ..., or rely on concepts such as the statute of limitations on criminal actions, res judicata principle and the double jeopardy safeguard or resort to any other measure designated to eliminate responsibility in order to escape from its duty to investigate and punish th [ ose ] responsible.” 64. In Gelman v. Uruguay ( (merits and reparations), judgment of 24 February 2011, Series C No. 221 ), the Inter-American Court analysed at length the position under international law with regard to amnesties granted for grave breaches of fundamental human rights. In so far as relevant, the judgment reads as follows: “184. The obligation to investigate human rights violations falls within the positive measures that States must adopt in order to ensure the rights recognized in the Convention and is an obligation of means rather than of results, which must be assumed by the State as [a] legal obligation and not as a mere formality preordained to be ineffective that depends upon the procedural initiative of the victims or their next of kin, or upon the production of evidence by private parties. ... 189. The mentioned international obligation to prosecute, and if criminal responsibility is determined, punish the perpetrators of the human rights violations, is encompassed in the obligation to respect rights enshrined in Article 1(1) of the American Convention and implies the right of the States Parties to organize all of the governmental apparatus, and in general, all of the structures through which the exercise of public power is expressed, in a way such that they are capable of legally guaranteeing the free and full exercise of human rights. 190. As part of this obligation, the States must prevent, investigate, and punish all violations of the rights recognized in the Convention, and seek, in addition, the reestablishment, if possible, of the violated right and, where necessary, repair the damage caused by the violation of human rights. 191. If the State ’ s apparatus functions in a way that assures the matter remains with impunity, and it does not restore, in as much as is possible, the victim ’ s rights, it can be ascertained that the State has not complied with the obligation to guarantee the free and full exercise of those persons within its jurisdiction. ... 195. Amnesties or similar forms have been one of the obstacles alleged by some States in the investigation, and where applicable, punishment of those responsible for serious human rights violations. This Court, the Inter-American Commission on Human Rights, the organs of the United Nations, and other universal and regional organs for the protection of human rights have ruled on the non-compatibility of amnesty laws related to serious human rights violations with international law and the international obligations of States. 196. As it has been decided prior, this Court has ruled on the non-compatibility of amnesties with the American Convention in cases of serious human rights violations related to Peru ( Barrios Altos and La Cantuta ), Chile ( Almonacid Arellano et al. ), and Brazil ( Gomes Lund et al. ). 197. In the Inter-American System of Human Rights, of which Uruguay forms part by a sovereign decision, the rulings on the non-compatibility of amnesty laws with conventional obligations of States when dealing with serious human rights violations are many. In addition to the decisions noted by this Court, the Inter-American Commission has concluded, in the present case and in others related to Argentina, Chile, El Salvador, Haití, Perú and Uruguay its contradiction with international law. The Inter-American Commission recalled that it: has ruled on numerous occasions in key cases wherein it has had the opportunity to express its point of view and crystallize its doctrine in regard to the application of amnesty laws, establishing that said laws violate various provisions of both the American Declaration as well as the Convention ’ and that ‘ [t] hese decisions which coincide with the standards of other international bodies on human rights regarding amnesties, have declared in a uniform manner that both the amnesty laws as well as other comparable legislative measures that impede or finalize the investigation and judgment of agents of [a] State that could be responsible for serious violations of the American Declaration or Convention, violate multiple provisions of said instruments. 198. In the Universal forum, in its report to the Security Council, entitled The rule of law and transitional justice in societies that suffer or have suffered conflicts, the Secretary General of the United Nations noted that: ‘ [ ... ] the peace agreements approved by the United Nations cannot promise amnesty for crimes of genocide, war, or crimes against humanity, or serious infractions of human rights [ ... ]. ’ 199. In the same sense, the United Nations High Commissioner for Human Rights concluded that amnesties and other analogous measures contribute to impunity and constitute an obstacle to the right to the truth in that they block an investigation of the facts on the merits and that they are, therefore, incompatible with the obligations incumbent on States given various sources of international law. More so, in regards to the false dilemma between peace and reconciliation, on the one hand, and justice on the other, it stated that: ‘ [t]he amnesties that exempt from criminal sanction those responsible for atrocious crimes in the hope of securing peace have often failed to achieve their aim and have instead emboldened their beneficiaries to commit further crimes. Conversely, peace agreements have been reached without amnesty provisions in some situations where amnesty had been said to be a necessary condition of peace and where many had feared that indictments would prolong the conflict. ’ 200. In line with the aforementioned, the Special Rapporteur of the United Nations on the issue of impunity, stated that: ‘ [t]he perpetrators of the violations cannot benefit from the amnesty while the victims are unable to obtain justice by means of an effective remedy. This would lack legal effect in regard to the actions of the victims relating to the right to reparation. ’ 201. The General Assembly of the United Nations established in Article 18 of the Declaration on the Protection of all Persons from Enforced Disappearance that ‘ persons who have or are alleged to have committed [enforced disappearance] shall not benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. ’ 202. The World Conference on Human Rights which took place in Vienna in 1993, in its Declaration and Program of Action, emphasized that States ‘ should derogate legislation that favors the impunity of those responsible for serious human rights violations, [ ... ] punish the violations, ’ highlighting that in those cases States are obligated first to prevent them, and once they have occurred, to prosecute the perpetrators of the facts. 203. The Working Group on Enforced or Involuntary Disappearances of the United Nations has handled, on various occasions, the matter of amnesties in cases of enforced disappearances. In its General Comments regarding Article 18 of the Declaration on the Protection of All Persons Against Enforced Disappearance, it noted that it considers amnesty laws to be contrary to the provisions of the Declaration, even when it has been approved in referendum or by another similar type of consultation process, if directly or indirectly, due to its application or implementation, it terminates the State ’ s obligation to investigate, prosecute, and punish those responsible for the disappearances, if it hides the names of those who perpetrated said acts, or if it exonerates them. 204. In addition, the same Working Group stated its concern that in situations of post-conflict, amnesty laws are promulgated or other measures adopted that have impunity as a consequence, and it reminded States that: in combating disappearances, effective preventive measures are crucial. Among them, it highlights [ ... ] bringing to justice all persons accused of having committed acts of enforced disappearance, ensuring that they are tried only by competent civilian courts, and that they do not benefit from any special amnesty law or other similar measures likely to provide exemption from criminal proceedings or sanctions, and providing redress and adequate compensation to victims and their families. 205. Also in the universal forum, the bodies of human rights protection established by treaties have maintained the same standards concerning the prohibition of amnesties that prevent the investigation and punishment of those who commit serious human rights crimes. The Human Rights Committee, in its General Comment 31, stated that States should assure that those guilty of infractions recognized as crimes in international law or in national legislation, among others—torture and other acts of cruel, inhumane, or degrading treatment, summary deprivations of life, and arbitrary detention, and enforced disappearances—appear before the justice system and not attempt to exempt the perpetrators of their legal responsibility, as has occurred with certain amnesty laws. 206. The Human Rights Committee ruled on the matter in the proceedings of individual petitions and in its country reports, noting in the case of Hugo Rodríguez v. Uruguay, that it cannot accept the posture of a State of not being obligated to investigate human rights violations committed during a prior regime given an amnesty law, and it reaffirmed that amnesty laws in regard to serious human rights violations are incompatible with the aforementioned International Covenant of Civil and Political Rights, reiterating that they contribute to the creation of an atmosphere of impunity that can undermine upon the democratic order and bring about other serious human rights violations. ... 209. Also in the universal forum, in another branch of international law – that is international criminal law, amnesties or similar norms have been considered inadmissible. The International Criminal Tribunal for the former Yugoslavia, in a case related to torture, considered that it would not make sense to sustain on the one hand the statute of limitations on the serious human rights violations, and on the other hand to authorize State measures that authorize or condone, or amnesty laws that absolve its perpetrators. Similarly, the Special Court for Sierra Leone considered that the amnesty laws of said country were not applicable to serious international crimes. This universal tendency has been consolidated through the incorporation of the mentioned standard in the development of the statutes of the special tribunals recently created within the United Nations. In this sense, both the United Nations Agreement with the Republic of Lebanon and the Kingdom of Cambodia, as well as the Statutes that create the Special Tribunal for Lebanon, the Special Court for Sierra Leone, and the Extraordinary Chambers of the Courts of Cambodia, have included in their texts, clauses that indicate that the amnesties that are conceded shall not constitute an impediment to the processing of those responsible for crimes that are within the scope of the jurisdiction of said tribunals. 210. Likewise, in an interpretation of Article 6-5 of the Protocol II Additional to the Geneva Convention on International Humanitarian Law, the ICRC stated that amnesties cannot protect perpetrators of war crimes: [w]hen it adopted paragraph 5 of Article 6 of Additional Protocol II, the USSR declared, in the reasoning of its opinion, that it could not be interpreted in such a way that it allow war criminals or other persons guilty of crimes against humanity to escape severe punishment. The ICRC agrees with this interpretation. An amnesty would also be inconsistent with the rule requiring States to investigate and prosecute those suspected of committing war crimes in non - international armed conflicts ( ... ). 211. This norm of International Humanitarian Law and interpretation of Article 6-5 of the Protocol has been adopted by the Inter-American Commission on Human Rights and the Human Rights Committee of the United Nations. 212. The illegality of the amnesties related to serious violations of human rights vis-à-vis international law have been affirmed by the courts and organs of all the regional systems for the protection of human rights. 213. In the European System, the European Court of Human Rights considered that it is of the highest importance, in what pertains to an effective remedy, that the criminal procedures which refer to crimes, such as torture, that imply serious violations of human rights, not be obstructed by statute of limitations or allow amnesties or pardons in this regard. In other cases, it highlighted that when an agent of the State is accused of crimes violating the rights of Article [2] in the European Convention (Right to life), the criminal proceedings and judgment should not be obstructed, and the granting of amnesty is not permitted. 214. The African Commission on Human and Peoples ’ Rights considered that amnesty laws cannot protect the State that adopts them from complying with their international obligations, and noted, in addition, that in prohibiting the prosecution of perpetrators of serious human rights violations via the granting of amnesty, the States not only promote impunity, but also close off the possibility that said abuses be investigated and that the victims of said crimes have an effective remedy in order to obtain reparation. ... F. Amnesty laws and the Jurisprudence of this Court. 225. This Court has established that ‘ amnesty provisions, the statute of limitation provisions, and the establishment of exclusions of responsibility that are intended to prevent the investigation and punish those responsible for serious violations to human rights such as torture, summary, extrajudicial, or arbitrary executions, and enforced disappearance are not admissible, all of which are prohibited for contravening irrevocable rights recognized by International Law of Human Rights. ’ 226. In this sense, amnesty laws are, in cases of serious violations of human rights, expressly incompatible with the letter and spirit of the Pact of San José, given that they violate the provisions of Articles 1(1) and 2, that is, in that they impede the investigation and punishment of those responsible for serious human rights violations and, consequently, impede access to victims and their families to the truth of what happened and to the corresponding reparation, thereby hindering the full, timely, and effective rule of justice in the relevant cases. This, in turn, favors impunity and arbitrariness and also seriously affects the rule of law, reason for which, in light of International Law, they have been declared to have no legal effect. 227. In particular, amnesty laws affect the international obligation of the State in regard to the investigation and punishment of serious human rights violations because they prevent the next of kin from being heard before a judge, pursuant to that indicated in Article 8(1) of the American Convention, thereby violating the right to judicial protection enshrined in Article 25 of the Convention precisely for the failure to investigate, persecute, capture, prosecute, and punish those responsible for the facts, thereby failing to comply with Article 1(1) of the Convention. 228. Under the general obligations enshrined in Article 1(1) and 2 of the American Convention, the States Parties have the obligation to take measures of all kinds to assure that no one is taken from the judicial protection and the exercise of their right to a simple and effective remedy, in the terms of Articles 8 and 25 of the Convention, and once the American Convention has been ratified, it corresponds to the State to adopt all the measures to revoke the legal provisions that may contradict said treaty as established in Article 2 thereof, such as those that prevent the investigation of serious human rights violations given that it leads to the defenselessness of victims and the perpetuation of impunity and prevents the next of kin from knowing the truth regarding the facts. 229. The incompatibility with the Convention includes amnesties of serious human rights violations and is not limited to those which are denominated, ‘ self-amnesties, ’ and the Court, more than the adoption process and the authority which issued the Amnesty Law, heads to its ratio legis : to leave unpunished serious violations committed in international law. The incompatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect in what regards the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention. G. The investigation of the facts and the Uruguayan Expiry Law. ... 240. ... in applying the provisions of the Expiry Law (which, [to] all inten [ ts and] purposes constitutes an amnesty law) and thereby impeding the investigation of the facts and the identification, prosecution, and possible punishment of the possible perpetrators of continued and permanent injuries such as those caused by enforced disappearance, the State fails to comply with its obligation to adapt its domestic law enshrined in Article 2 of the Convention.” 65. In Gomes Lund et al. (“ Guerrilha do Araguaia”) v. Brazil ( (preliminary objections, merits, reparations and costs), judgment of 24 November 2010, Series C No. 219 ) the Inter-American Court again strongly opposed the granting of amnesties for grave breaches of fundamental human rights. After relying on the same international law standard as in the above-cited Gelman case, it held, in so far as relevant, as follows : “ 171. As is evident from the content of the preceding paragraphs, all of the international organs for the protection of human rights and several high courts of the region that have had the opportunity to rule on the scope of amnesty laws regarding serious human rights violations and their compatibility with international obligations of States that issue them, have noted that these amnesty laws impact the international obligation of the State to investigate and punish said violations. 172. This Court has previously ruled on the matter and has not found legal basis to part from its constant jurisprudence that, moreover, coincides with that which is unanimously established in international law and the precedent of the organs of the universal and regional systems of protection of human rights. In this sense, regarding the present case, the Court reiterates that ‘ amnesty provisions, the statute of limitation provisions, and the establishment of exclusions of responsibility that are intended to prevent the investigation and punishment of those responsible for serious violations to human rights such as torture, summary, extrajudicial, or arbitrary executions, and enforced disappearance are not admissible, all of which are prohibited for contravening irrevocable rights recognized by International Law of Human Rights. ’ ... 17 5. In regard to the that argued by the parties [ ‘ arguments] regarding whether the case deals with an amnesty, self-amnesty, or ‘ political agreement, ’ the Court notes, as is evident from the criteria stated in the present case ( supra para. 171), that the non- compatibility with the Convention includes amnesties of serious human rights violations and is not limited to those which are denominated, ‘ self-amnesties. ’ Likewise, as has been stated prior, the Court, more than the adoption process and the authority which issued the Amnesty Law, heads to its ratio legis : to leave unpunished serious violations in international law committed by the military regime. The non-compatibility of the amnesty laws with the American Convention in cases of serious violations of human rights does not stem from a formal question, such as its origin, but rather from the material aspect as they breach the rights enshrined in Articles 8 and 25, in relation to Articles 1(1) and 2 of the Convention. 17 6. This Court has established in its jurisprudence that it is conscious that the domestic authorities are subject to the rule of law, and as such, are obligated to apply the provisions in force of the legal code. However, when a State is a Party to an international treaty such as the American Convention, all of its organs, including its judges, are also subject to it, wherein they are obligated to ensure that the effects of the provisions of the Convention are not reduced by the application of norms that are contrary to the purpose and end goal and that from the onset lack legal effect. The Judicial Power, in this sense, is internationally obligated to exercise ‘ control of conventionality ’ ex officio between the domestic norms and the American Convention, evidently in the framework of its respective jurisdiction and the appropriate procedural regulations. In this task, the Judicial Power must take into account not only the treaty, but also the interpretation that the Inter-American Court, as the final interpreter of the American Convention, has given it. ” 66. More recently, in the case of The Massacres of El Mozote and Nearby Places v. El Salvador ((merits, reparations and costs), judgment of 25 October 2012, Series C No. 252) the Inter-American Court, in so far as relevant for the present case, held as follows (footnotes omitted) : “ 283. In the cases of Gomes Lund v. Brazil and Gelman v. Uruguay, decided by this Court within the sphere of its jurisdictional competence, the Court has already described and developed at length how this Court, the Inter-American Commission on Human Rights, the organs of the United Nations, other regional organizations for the protection of human rights, and other courts of international criminal law have ruled on the incompatibility of amnesty laws in relation to grave human rights violations with international law and the international obligations of States. This is because amnesties or similar mechanisms have been one of the obstacles cited by States in order not to comply with their obligation to investigate, prosecute and punish, as appropriate, those responsible for grave human rights violations. Also, several States Parties of the Organization of American States, through their highest courts of justice, have incorporated the said standards, observing their international obligations in good faith. Consequently, for purposes of this case, the Court reiterates the inadmissibility of ‘ amnesty provisions, provisions on prescription, and the establishment of exclusions of responsibility that seek to prevent the investigation and punishment of those responsible for grave human rights violations such as torture, summary, extrajudicial or arbitrary execution, and forced disappearance, all of which are prohibited because they violate non- derogable rights recognized by international human rights law. ’ 284. However, contrary to the cases examined previously by this Court, the instant case deals with a general amnesty law that relates to acts committed in the context of an internal armed conflict. Therefore, the Court finds it pertinent, when analyzing the compatibility of the Law of General Amnesty for the Consolidation of Peace with the international obligations arising from the American Convention and its application to the case of the Massacres of El Mozote and Nearby Places, to do so also in light of the provisions of Protocol II Additional to the 1949 Geneva Conventions, as well as of the specific terms in which it was agreed to end hostilities, which put an end to the conflict in El Salvador and, in particular, of Chapter I ( ‘ Armed Forces ’ ), section 5 ( ‘ End to impunity ’ ), of the Peace Accord of January 16, 1992. 285. According to the international humanitarian law applicable to these situations, the enactment of amnesty laws on the conclusion of hostilities in non-international armed conflicts are sometimes justified to pave the way to a return to peace. In fact, article 6(5) of Protocol II Additional to the 1949 Geneva Conventions establishes that: At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained. 286. However, this norm is not absolute, because, under international humanitarian law, States also have an obligation to investigate and prosecute war crimes. Consequently, ‘ persons suspected or accused of having committed war crimes, or who have been convicted of this ’ cannot be covered by an amnesty. Consequently, it may be understood that article 6(5) of Additional Protocol II refers to extensive amnesties in relation to those who have taken part in the non-international armed conflict or who are deprived of liberty for reasons related to the armed conflict, provided that this does not involve facts, such as those of the instant case, that can be categorized as war crimes, and even crimes against humanity. ” R. Extraordinary Chambers in the Courts of Cambodia 67. The Extraordinary Chambers in the Courts of Cambodia, in the Decision on Ieng Sary ’ s Appeal against the Closing Order (case no. 002/19 09-2007-ECCC/OCIJ (PTC75) of 11 April 2011), discussing the effects of the amnesty on prosecution, stated: “199. The crimes charged in the Closing Order, namely genocide, crimes against humanity, grave breaches of the Geneva Conventions, and homicide, torture and religious persecution as national crimes, are not criminalised under the 1994 Law and would therefore continue to be prosecuted under existing law, be it domestic or international criminal law, even if perpetrated by alleged members of the Democratic Kampuchea group. ... 201. The interpretation of the Decree proposed by the Co-Lawyers for Ieng Sary, which would grant Ieng Sary an amnesty for all crimes committed during the Khmer Rouge era, including all crimes charged in the Closing Order, not only departs from the text of the Decree, read in conjunction with the 1994 Law, but is also inconsistent with the international obligations of Cambodia. Insofar as genocide, torture and grave breaches of the Geneva Conventions are concerned, the grant of an amnesty, without any prosecution and punishment, would infringe upon Cambodia ’ s treaty obligations to prosecute and punish the authors of such crimes, as set out in the Genocide Convention, the Convention Against Torture and the Geneva Conventions. Cambodia, which has ratified the ICCPR, also had and continues to have an obligation to ensure that victims of crimes against humanity which, by definition, cause serious violations of human rights, were and are afforded an effective remedy. This obligation would generally require the State to prosecute and punish the authors of violations. The grant of an amnesty, which implies abolition and forgetfulness of the offence for crimes against humanity, would not have conformed with Cambodia ’ s obligation under the ICCPR to prosecute and punish authors of serious violations of human rights or otherwise provide an effective remedy to the victims. As there is no indication that the King (and others involved) intended not to respect the international obligations of Cambodia when adopting the Decree, the interpretation of this document proposed by the Co-Lawyers is found to be without merit.” S. Special Court for Sierra Leone 68. On 13 March 2004 the Appeals Chamber of the Special Court for Sierra Leone, in Cases Nos. SCSL-2004-15- AR72( E) and SCSL-2004-16-AR72(E), adopted its Decision on Challenge to Jurisdiction: Lomé Accord Amnesty, in which it observed the following: “82. The submission by the Prosecution that there is a ‘ crystallising international norm that a government cannot grant amnesty for serious violations of crimes under international law ’ is amply supported by materials placed before this Court. The opinion of both amici curiae that it has crystallised may not be entirely correct, but that is no reason why this court in forming its own opinion should ignore the strength of their argument and the weight of materials they place before the Court. It is accepted that such a norm is developing under international law. Counsel for Kallon submitted that there is, as yet, no universal acceptance that amnesties are unlawful under international law, but, as amply pointed out by Professor Orentlicher, there are several treaties requiring prosecution for such crimes. These include the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the four Geneva conventions. There are also quite a number of resolutions of the UN General Assembly and the Security Council reaffirming a state obligation to prosecute or bring to justice. Redress has appended to its written submissions materials which include relevant conclusions of the Committee against torture, findings of the Human Rights Commission, and relevant judgments of the Inter-American Court. ... 84. Even if the opinion is held that Sierra Leone may not have breached customary law in granting an amnesty, this court is entitled in the exercise of its discretionary power, to attribute little or no weight to the grant of such amnesty which is contrary to the direction in which customary international law is developing and which is contrary to the obligations in certain treaties and conventions the purpose of which is to protect humanity.” | This case concerned the conviction, in 2007, of a former commander of the Croatian army of war crimes against the civilian population committed in 1991. He complained in particular that the criminal offences of which he had been convicted were the same as those which had been the subject of proceedings against him terminated in 1997 in application of the General Amnesty Act. |
752 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants are involved in a long-standing dispute with the State concerning the ownership of land in Omorphokklisia in Galatsi forming part of a wider area called the “ Veikou Estate” over which the State claims ownership. In 1923, 1928, 1931, 1932 and 1941 the State expropriated large parts of the Veikou Estate for various purposes in the public interest. 9. In an opinion (no. 23/1987) which was approved by the Minister of Finance in 1987 and confirmed by the same minister in 1992, the Public Estates Consultative Board said that the Veikou Estate belonged to the State, since Mr Veïkos’s heirs had failed to prove that they had acquired property rights under title deeds or from adverse possession of the estate. On the basis of that opinion, the State Lands Authority registered the land possessed by Mr Veïkos’s heirs and subsequently all the plots which had been transferred to third parties by the heirs as public estates. Various sets of proceedings brought against the State by Mr Veïkos’s heirs and third parties are still pending in the domestic courts. 10. In 1934 the Minister of Agriculture decided to extend reafforestation in Attica to a region which included the disputed land. According to that decision, the area had “consisted, before the destruction and deterioration of the forest vegetation ..., of pine-tree forest which [had] progressively deteriorated and was starting to disappear ...” (decision no. 108424/1934). 11. However, in a document of the Athens Forestry Commission of 16 November 1968 on city planning, it was stated that half the area concerned was agricultural and the other half scrubland covered by bushes and just five pine trees. The Forestry Commission expressed the opinion that the area had never been forest land and could not be reafforested, since the decision of the Ministry of Agriculture of 1934 excluded from the scope of reafforestation barren land or parcels owned by individuals. The Forestry Commission concluded that the city development plan could be extended to the area concerned. Two previous documents of the Ministry of Agriculture, dated 3 December 1948 and 11 September 1949, and an expert report concerning the Veikou Estate had arrived at the same conclusion. 12. On 10 October 1994 the prefect of Athens decided that an area within the Veikou Estate, including the disputed plot of land, should be reafforested. It was expressly stated in the prefect’s decision that the aim was “... to recreate the forest greenery that [had] been destroyed or [had] deteriorated by illegal quarrying and other illegal actions, such as land clearing and building, over an area covering 935,483,000 sq. m”. 13. On 23 December 1994 the applicants challenged the prefect’s decision of 10 October 1994 in the Supreme Administrative Court. They claimed that they were the owners of properties that had been created by the parcelling of the Veikou Estate and were located inside the area set aside for reafforestation. In particular, they contended that the prefect’s decision sought to deprive them of any rights of possession or ownership in the contested plot. In their additional observations of 26 July 1996, they claimed that the underlying reason for the decision was an attempt by the State to create a dispute over the applicants’ rights of possession or ownership, despite the fact that there was no basis in law for the decision, since the area had never been a forest in the past. 14. On 20 January 1995 the applicants invited the State to purchase the plot in question from them. The authorities did not reply. 15. On 6 April 1998 the Supreme Administrative Court declared the applicants’ appeal inadmissible on the ground that the prefect’s decision was not an operative one, since it simply confirmed the decision that had been issued by the Minister of Agriculture in 1934. In particular, the Supreme Administrative Court held that the 1934 decision remained in force because it had not been reversed by any other act of equivalent importance. Subsequent acts of the authorities, such as the interpretation of some aerial photographs, could not be considered as a fresh assessment of the situation capable of rendering the prefect’s decision operative. 16. On 22 October 1999 the Athens Forestry Commission, following the procedure prescribed by Law no. 998/1979, classified 189,475 sq. m of land located within the area concerned by the prefect’s decision of 10 October 1994. It concluded that only 20,650 sq. m of it was forest land and should be reafforested. The Forest Disputes Resolution Committee upheld that decision and an appeal is now pending before the Appeal Board. 17. In various judgments over the past few years the Greek courts have been called upon to decide the property status of parts of the Veikou Estate (judgments no. 8864/1995 of the Athens Court of First Instance, no. 8314/1996 of the Athens Court of Appeal, and no. 9632/2000 of the Athens Court of Appeal). The courts have recognised that a number of plots which were situated in the greater Veikou Estate did not constitute forest land but were private properties which were included in the city development plan. Other judicial decisions (judgments no. 13789/1977 of the Athens Court of First Instance, no. 7350/1978 of the Athens Court of Appeal, no. 696/1980 of the Court of Cassation, no. 1865/1992 of the Athens Court of First Instance, and no. 1783/1997 of the Athens Court of First Instance) concluded that the greater area, which comprised the properties claimed by the applicants, had never been forest land in the past. | In this case the 25 applicants and the authorities were in dispute over the ownership of a plot of land. In 1994 the prefect of Athens had decided that an area including the disputed plot of land, should be reafforested. The applicants challenged that decision before the Council of State. Their appeal was dismissed on the ground that the prefect’s decision had merely confirmed an earlier decision made by the Minister for Agriculture in 1934. However, in 1999 the Athens Forest Inspection concluded that only part of the area concerned had been forest in the past and could therefore be reforested. The applicants submitted in particular that their property had effectively been expropriated without their being paid any compensation and argued that no public interest could justify such a drastic limitation of their property rights, taking into account that any reafforestation of the land was impossible because of the type and quality of the soil. |
1,005 | Military intervention exercising effective control | I. THE CIRCUMSTANCES OF THE CASE 9. The ten applicants are all citizens of Serbia and Montenegro, which was known at the time of the events in question as the Federal Republic of Yugoslavia (“ the FRY”). The first two applicants, Dusan and Zoran Markovic, were born in 1924 and 1952 respectively, and applied to the Court on behalf of Dejan Markovic, deceased son of Dusan Markovic and brother of Zoran Markovic. The third and fourth applicants, Dusika and Vladimir Jontic, were born in 1948 and 1978 respectively, and applied to the Court on behalf of Slobodan Jontic, deceased husband of Dusika Jontic and father of Vladimir Jontic. The fifth applicant, Draga Jankovic, was born in 1947 and applied to the Court on behalf of her deceased husband, Milovan Jankovic. The sixth and seventh applicants, Mirjana and Slavica Stevanovic, were born in 1945 and 1974 respectively, and applied to the Court on behalf of Slavisa Stevanovic, deceased son of Mirjana Stevanovic and brother of Slavica Stevanovic. The eighth, ninth and tenth applicants, Milena, Obrad and Dejan Dragojevic, were born in 1953, 1946 and 1975 respectively, and applied to the Court on behalf of Dragorad Dragojevic, deceased son of Milena and Obrad Dragojevic and brother of Dejan Dragojevic. 10. The applicants lodged the present application to complain of the outcome of an action in damages which they had brought in the Italian courts in respect of an air strike against the FRY. A. Background and the bombing of Radio- televizija Srbija (RTS) 11. The facts of the case relate to the same events as those considered by the Court in its decision in the case of Banković and Others v. Belgium and Others ( (dec. ) [GC], no. 52207/99, ECHR 2001-XII). The facts in that case were summarised as follows: “ 6. The conflict in Kosovo between Serbian and Kosovar Albanian forces during 1998 and 1999 is well documented. Against the background of the escalating conflict, together with the growing concerns and unsuccessful diplomatic initiatives of the international community, the six-nation Contact Group (established in 1992 by the London Conference) met and agreed to convene negotiations between the parties to the conflict. 7. On 30 January 1999, and following a decision of its North Atlantic Council (NAC), the North Atlantic Treaty Organisation (NATO) announced air strikes on the territory of the FRY in the case of non-compliance with the demands of the international community. Negotiations consequently took place between the parties to the conflict from 6 to 23 February 1999 in Rambouillet and from 15 to 18 March 1999 in Paris. The resulting proposed peace agreement was signed by the Kosovar Albanian delegation but not by the Serbian delegation. 8. Considering that all efforts to achieve a negotiated political solution to the Kosovo crisis had failed, the NAC decided on, and on 23 March 1999 the Secretary General of NATO announced, the beginning of air strikes (Operation Allied Force) against the FRY. The air strikes lasted from 24 March to 8 June 1999. ... 9. Three television channels and four radio stations operated from the RTS facilities in Belgrade. The main production facilities were housed in three buildings at Takovska Street. The master control room was housed on the first floor of one of the buildings and was staffed mainly by technical staff. 10. On 23 April 1999, just after 2 a.m. approximately, one of the RTS buildings at Takovska Street was hit by a missile launched from a NATO forces ’ aircraft. Two of the four floors of the building collapsed and the master control room was destroyed. 11. ... Twenty-four targets were hit in the FRY that night, including three in Belgrade .” 12. The partial collapse of the RTS building caused the deaths of sixteen people, including the five relatives of the applicants. B. Civil proceedings in the Rome District Court 13. On 31 May 2000 the first four applicants brought an action in damages in the Rome District Court under Article 2043 of the Italian Civil Code. The other six applicants applied to be joined to the proceedings on 3 November 2000. 14. The applicants believed that civil liability for the deaths of their relatives lay with the Italian Prime Minister ’ s Office and Ministry of Defence and with the Command of NATO ’ s Allied Forces in Southern Europe (AFSOUTH ). They argued that the Italian courts had jurisdiction to hear the case. In particular, on the basis of the wording of Article 6 of the Italian Criminal Code, they submitted that the unlawful act that had caused the alleged damage should be regarded as having been committed in Italy inasmuch as the military action had been organised on Italian territory and part of it had taken place there. They based this argument on the extent of Italy ’ s commitment – involving substantial political and logistical support – to the military mission in question. Specifically, Italy, unlike other NATO members, had provided the air bases from which the aircraft that had bombed Belgrade and the RTS had taken off. They also relied in support of their claim on Article 174 of the Wartime Military Criminal Code and on the London Convention of 1951 and the Protocol Additional to the Geneva Conventions. 15. The defendants argued that the Italian courts had no jurisdiction to hear the case. The proceedings against AFSOUTH were discontinued by the applicants. 16. The Prime Minister ’ s Office and the Ministry of Defence subsequently sought a preliminary ruling from the Court of Cassation on the question of jurisdiction ( regolamento preventivo di giurisdizione ) under Article 41 of the Italian Code of Civil Procedure. 17. In written submissions dated 16 November 2001, Assistant Principal State Counsel at the Court of Cassation argued that the application for a preliminary ruling should be declared inadmissible as it concerned the merits of the claim, not the issue of jurisdiction. He stated as follows: “The governmental bodies defending this claim have requested a preliminary ruling on the issue of jurisdiction, arguing that : (a) since the action is brought against the Italian State as a specific (unitary) subject of international law for acts performed in the exercise of its imperium ( iure imperii ), it cannot be brought in the Italian courts; (b) paragraph 5 of Article VIII of the London Convention of 19 June 1951, which Italy ratified by Law no. 1335 of 1955, does not provide any basis for the action either, as it applies to damage caused in the receiving State. The government seek to show through this jurisdictional issue that the Italian legal system does not contain any provision or principle capable of providing a basis for the alleged personal right [ diritto soggettivo perfetto ] or of guaranteeing it in the abstract. Accordingly, the position is that: (a) the government argue that the Italian State cannot be held liable for acts carried out in the exercise of its imperium; (b) in addition, they deny that the said London Convention can be used to determine the place where the acts which caused the alleged damage took place (it is not by accident that the applicant has cited the provisions of the Criminal Code referring to the place where the offence was committed). It follows that the questions thus raised go to the merits, not to the issue of jurisdiction (see judgment no. 903 of 17 December 1999 of the Court of Cassation, sitting as a full court). For these reasons, the Court of Cassation, sitting as a full court, is asked to declare the application inadmissible, with all the consequences which that entails in law.” 18. In a ruling (no. 8157) of 8 February 2002, which was deposited with the registry on 5 June 2002 and conveyed to the applicants on 11 June 2002, the Court of Cassation, sitting as a full court ( Sezioni Unite ), found that the Italian courts had no jurisdiction. It reasoned as follows: “ ... 2. The claim seeks to impute liability to the Italian State on the basis of an act of war, in particular the conduct of hostilities through aerial warfare. The choice of the means that will be used to conduct hostilities is an act of government. These are acts through which political functions are performed and the Constitution provides for them to be assigned to a constitutional body. The nature of such functions precludes any claim to a protected interest in relation thereto, so that the acts by which they are carried out may or may not have a specific content – see the judgments of the full court of 12 July 1968 (no. 2452), 17 October 1980 (no. 5583) and 8 January 1993 (no. 124). With respect to acts of this type, no court has the power to review the manner in which the function was performed. 3. While the purpose of the provisions of international agreements governing the conduct of hostilities – the Protocol Additional to the Geneva Conventions (Articles 35 .2, 48, 49, 51, 52 and 57) and the European Convention on Human Rights (Articles 2 and 15 § 2 ) – is to protect civilians in the event of attack, they are rules of international law, and so also regulate relations between States. These same treaties lay down the procedure for finding a violation and the sanctions in the event of liability (Article 91 of the Protocol and Article 41 of the Convention); they also designate the international courts and tribunals with jurisdiction to make such a finding. However, the legislation implementing these rules in the Italian State does not contain any express provision enabling injured parties to seek reparation from the State for damage sustained as a result of a violation of the rules of international law. The notion that provisions to that effect may implicitly have been introduced into the system through the implementation of rules of international law is at odds with the converse principle that has been mentioned which holds that protected individual interests are no bar to carrying out functions of a political nature. Indeed, in order to enable reparation to be provided in the domestic system for loss sustained as a result of a violation of the ‘ reasonable time ’ requirement under Article 6 of the Convention on Human Rights, [the State] introduced appropriate legislation (Law no. 89 of 24 March 2001). 4. No entitlement to a review of the government ’ s decision concerning the conduct of hostilities with respect to the NATO aerial operations against the Federal Republic of Yugoslavia can be found in the London Convention of 1951. The fact that the aircraft used to bomb the Belgrade radio and television station were able to use bases situated on Italian territory constitutes but one element of the highly complex operation whose lawfulness it is sought to review and is not therefore relevant to the application of the rule laid down in paragraph 5 of Article VIII of the Convention, which on the contrary presupposes the commission of an act that is amenable to review.” 19. The Court of Cassation ’ s ruling brought to an end, ipso jure, the proceedings in the Rome District Court. | This application concerned an action in damages brought by the applicants in the Italian courts in respect of the deaths of their relatives as a result of air strikes on 23 April 1999 by the NATO alliance against the Federal Republic of Yugoslavia. |
833 | Seizure of smart phone and search of its mirror image copy | 2. The applicant, Mr Mohammed Imran Saber, is a Norwegian national who was born in 1978 and lives in Oslo. He was represented before the Court by Mr J.C. Elden, a lawyer practising in Oslo. 3. The Government were represented by their Agent, Ms H. Busch at the Attorney General’s Office (Civil Matters), assisted by Ms L. Tvedt, an associate at the same office. The circumstances of the case 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. In connection with an investigation into a criminal case against two persons for, among other things, conspiracy to murder the applicant – who, being a possible victim of an alleged crime, was accordingly an “aggrieved party” ( fornærmet ) in the sense that that term is employed in the domestic criminal procedural law – the applicant’s smart phone was seized by the police on 23 November 2015. A mirror-image copy of the phone was captured, as the police wished to search it in order to shed light on possible conflicts between the suspects and the applicant. The phone was returned to the applicant. When the phone had been taken, the applicant stated that it contained his correspondence with two lawyers defending him ( forsvarsadvokater ) in another criminal case, in which he was a suspect. 6. Since the applicant had given information to the effect that the phone contained communications between the applicant and his lawyers, there were reasons to believe that some of the content of the mirror image copy would be exempt from seizure under Articles 204 and 119 of the Code of Criminal Procedure (see paragraph 29 below). On 4 January 2016 the prosecuting authority therefore decided to submit the mirror image copy to the Oslo City Court ( tingrett ) under the procedure set out in the last paragraph of Article 205, which the authority assumed applied by analogy. The prosecuting authority requested that the City Court peruse the mirror image copy and decide which parts of the data on it were subject to legal professional privilege (LPP) and which parts could be given to the police to search. At the same time the prosecuting authority declared that they had waived the seizure of those parts of the material that contained correspondence with the two above defence counsel or with the other counsel who assisted the applicant in his role as an aggrieved party in the case concerning conspiracy to murder ( bistandsadvokat ). 7. In the course of the continued proceedings before the City Court, the views of the parties were obtained. The prosecuting authority, counsel for the applicant in respect of his role as an aggrieved party, as well as defence counsel for the suspects in the case relating to conspiracy to murder, were given the opportunity to file submissions. Counsel for the applicant as an aggrieved party stated that the mirror image copy also contained confidential correspondence with other lawyers. 8. In a letter of 5 April 2016 the Oslo City Court listed the keywords that it proposed using in its perusal of the mirror image copy, in order to sift out data subject to LPP. The City Court suggested at the same time that it be assisted by a technical expert from the Oslo police. It was emphasised that the technical expert should not be associated with the investigation and was to sign a declaration of confidentiality. 9. In her reply of 9 April 2016, counsel for the applicant as an aggrieved party stated that she disagreed. She requested that a formal decision be given as to how to proceed with the search on the data on the mirror image copy. In addition, she argued that particular limitations to the prosecuting authority’s right to seize data applied when that data belonged to witnesses (which was the formal status of the applicant in the case relating to conspiracy to murder) and not to the persons charged. 10. In a letter of 8 August 2016 the Oslo City Court stated that the court would therefore not be assisted by an Oslo police technician in perusing the mirror image copy. The City Court would instead engage external technical assistance. 11. By letters of 30 August and 2 September 2016, the prosecuting authority objected to the engagement of external assistance by the City Court, as they feared that it could lead to the destruction of evidence. By letter of 29 September 2016, counsel for the applicant as an aggrieved party submitted that an attempt by the City Court to seek assistance from police officers in perusing the mirror image copy would breach Article 8 of the Convention. 12. By letter of 20 January 2017 to the Oslo City Court, the prosecuting authority made reference to a Supreme Court ( Høyesterett ) decision rendered – in an unrelated case – four days earlier; on 16 January 2017 (see paragraphs 30-40 below). Based on the decision, the prosecuting authority requested the return of the mirror image copy so that they could themselves examine it in order to assess which parts would be exempt from seizure. By letter of 10 February 2017, counsel for the applicant as an aggrieved party objected to the procedure proposed by the prosecuting authority, considering that it was for the City Court to examine the mirror image copy and filter out the data that should be exempt from seizure on account of LPP. 13. On 6 March 2017 the Oslo City Court declined jurisdiction for examining the mirror image copy in order to assess which data should not be subject to seizure. The City Court gave decisive weight to the Supreme Court’s decision of 16 January 2017, and found that that decision prescribed that it was for the police to carry out that kind of filtering. It accordingly returned the mirror image copy to the police for examination and assessment of whether the different data on it could be seized in accordance with Articles 203 et seq. of the Code of Criminal Procedure (see paragraph 29 below). 14. The applicant appealed to the Borgarting High Court ( lagmannsrett ) against the City Court’s decision. He also sought a stay of execution of the City Court’s decision pending the outcome of the appeal. The latter request was turned down by the City Court. 15. In its decision of 12 June 2017, the High Court initially noted that the case concerned the procedure for perusing a data carrier that had already been seized by the police. Specifically, the prosecuting authority had, by analogy with the third paragraph of Article 205 of the Code of Criminal Procedure (see paragraph 29 below), requested that an examination be carried out by the City Court in order to filter out the data which were subject to LPP and therefore exempt from seizure (which meant that the police would also not be entitled to search the data, then possibly deciding on their seizure); it was not a case in which seizure had been decided and the applicant subsequently requested that it be lifted pursuant to Article 208 (ibid.). 16. The applicant had principally argued that he, by virtue of the letters initially sent from the Oslo City Court in which that court had proceeded on the grounds that it was competent to peruse the mirror image copy with the assistance of an external technician, had a vested right to have that procedure followed. The High Court concluded on this point that the City Court had not taken any decisions to the effect that the applicant had acquired any rights relating to the procedure. It was therefore incumbent on the High Court to decide on the correct procedure. 17. Turning to this question of the correct procedure, the High Court took as its starting point the first section of Article 204 of the Code of Criminal Procedure, according to which documents about whose contents a witness would be entitled to refuse to testify were exempt from seizure (see paragraph 29 below). According to Article 119 a court was not entitled to take statements from lawyers about matters that had been vouchsafed to them in their capacity as lawyers. The High Court observed that conversations and messages between lawyers and clients enjoyed solid protection under the Code of Criminal Procedure and Article 8 of the Convention. 18. The High Court went on to examine the relevant Supreme Court case-law, in particular the Supreme Court’s decisions of 27 March 2013 (published in Norsk Retstidende ( Rt ) 2013-968); 11 October 2013 (Rt ‑ 2013 ‑ 1282); 27 January 2015 (Rt-2015-81); and 16 January 2017 (see paragraphs 30-40 below). 19. The instant case, the High Court observed, did not concern seizure of documents at a lawyer’s office or a lawyer’s premises. It was likely, however, that the mirror image copy comprised occasional communications between the applicant and his lawyers. There was still no information on whether such communications formed any sizeable part of the total data content of the copy. 20. According to the High Court, it was the prosecuting authority that had the primary competence to take decisions on seizure, as well as the primary responsibility for ensuring that seizures were not decided in respect of data that were exempt from seizure under the Code of Criminal Procedure. It observed that in its decision of 16 January 2017 the Supreme Court had carried out a thorough examination of the relevant legal sources, including the case-law of this Court with regard to Article 8 of the Convention. 21. In the High Court’s view the City Court had rightly concluded that the prosecuting authority had the competence to peruse the data on the mirror image copy. When carrying out such examination, the prosecuting authority would have to sift out any data that could be exempt from seizure. Any such data would, without any further inspection, have to be returned to the applicant or deleted. Data in respect of which the question whether they might be exempt from seizure could be raised would have to be transmitted uninspected to the City Court so that that court could peruse them pursuant to the application by analogy of the third paragraph of Article 205 of the Code of Criminal Procedure (see paragraph 29 below). 22. Moreover, the High Court observed that the exemption from seizure under Articles 204 and 119 of the Code of Criminal Procedure (see paragraph 29 below) was absolute; it applied regardless of the owner of the object in question. Accordingly, the fact that the smart phone in the instant case belonged to the aggrieved party and not, for instance, to an accused, could not lead to any other conclusion than that which followed from the Supreme Court’s decision of 16 January 2017 (see paragraphs 30-40 below). 23. Lastly, the High Court noted that the City Court’s decision of 6 March 2017 (see paragraph 13 above) had been based on the prosecuting authority’s initial transmission of the mirror image copy to the City Court to enable the latter to peruse the data on it. In so doing the City Court had not taken any decision on items possibly to be seized or on details concerning the examination of such items. Such questions therefore fell outside the ambit of the appeal proceedings. The High Court nonetheless remarked that it had not been shown that the perusal could only be effected by searching for particular keywords. A keyword search would, however, have to be carried out in order to reveal which data were exempt from seizure. Reference was made to the Supreme Court’s decision of 16 January 2017, with further reference to, inter alia, the decision reported in Rt-2015-81 (see paragraphs 30-40 below). 24. Relying on the above considerations, the High Court unanimously rejected the appeal. 25. On 25 June 2017 the applicant appealed to the Supreme Court against the High Court’s decision. He also applied for the implementation of the High Court’s decision to be suspended pending the outcome of the appeal. The latter request was turned down by the City Court. 26. On 30 June 2017 the Supreme Court’s Appeals Leave Committee ( Høyesteretts ankeutvalg ), in a summary decision, unanimously concluded that the appeal against the High Court’s decision clearly had no prospects of success and therefore rejected it. 27. The mirror image copy was thereafter returned to the police for search. This search was then carried out by the police themselves, without any control by the regional court at this stage. The procedure was described in a report from police officer E.S.R. of 9 November 2017. The report stated, inter alia, the following: “The seizure has been the subject of court proceedings, as Saber [(the applicant)] claimed that there are data items exempt from seizure on the phone, including legal correspondence with his defence counsel, attorney [Ø.S.] and attorney [P.D.]. Furthermore, attorney [S.E.] was appointed as counsel for Saber as aggrieved party on 30 September 2015 and it has also emerged that there is correspondence with her on Saber’s phone. On the basis of decisions from the court, it has been decided, in consultation with [L.P.], who is responsible for the prosecution ( påtaleansvarlig ), that correspondence with the above-mentioned attorneys and lawyer’s offices shall be removed from the mirror image copy which is to be examined by the police. It has also been decided that if the examination reveals contact that has not been captured ( fanget opp ), this shall not be examined.” The report stated, moreover, that the work with filtering out correspondence had been carried out by police officer A.K. at the Section of Digital Policework ( Seksjon for digitalt politiarbeid ) and specified the methods she had employed for that purpose. 28. The parties have not informed the Court of any further proceedings involving the data on the applicant’s smart phone or of the further proceedings in respect of the case in which the applicant was the aggrieved party. The criminal proceedings against the applicant ended with his acquittal on 11 March 2019. | The applicant’s smart phone was seized by the police in the context of a criminal investigation against two people for conspiracy to murder him. The police captured a mirror image copy of the phone, which they wished to search. The applicant stated that his phone contained correspondence with two lawyers defending him in another case, in which he was a suspect (these proceedings ended with his acquittal). He submitted that the proceedings in respect of search and seizure of data from his smart phone, facilitating access to correspondence between him and his lawyers, had breached his rights. |
895 | Private persons | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1978 and lives in Berezniki, Perm region, together with her son, born in 2001. She is a single mother. A. Publication of a photograph of the applicant ’ s son 6. At the material time the applicant was teaching physical education in a secondary school in Berenzniki. 7. In November 2007 the applicant learnt that a photograph of her son had been published on the cover page of a booklet prepared by the Centre for Psychological, Medical and Social Support of the Usolskiy District, Perm region (“the Centre”), entitled “ Children need a family ”. 8. The booklet consisted of six pages, including the cover page. The boy ’ s photograph occupied the major part of the cover page and showed his face. Above the photograph there was a slogan “Children need a family”. At the bottom of the cover page, just under the photograph were the words : “Centre for Psychological, Medical and Social Support, town of Usoliye”. The second page contained two more photographs of other children, with citations from the Convention on the Rights of the Child and the Russian Family Code. The third page was headed “Forms of replacing family care” and presented the various arrangements : adoptive family, tutorial family, foster home and others. The remaining pages informed the readers about the creation in the district of the Municipal Centre for Psychological, Medical and Social Support, the role of which was to protect orphans and assist families in adopting them. They explained what kind of support and advice families could seek in the Centre and how they could help orphans. On the last page the following was written: “If you wish to save a child from loneliness and give him a hearth and home, come to us!” 9. The applicant alleged that she had not been informed about the booklet, let alone asked for authorisation for a photograph of her son to be published. B. Proceedings brought by the applicant 1. The applicant ’ s attempts to institute criminal proceedings 10. In November 2007 the applicant asked the local department of the interior and the prosecutor ’ s office to carry out an investigation into the unauthorised publication of her son ’ s photograph on the booklet. 11. In December 2007 the department of the interior replied that there were no grounds to institute criminal proceedings. 12. On 9 January 2008 the district prosecutor informed the applicant that the booklet had been prepared and published by a publishing company, A., at the request of the Centre. In total, 200 copies of the booklet had been published. The photograph of the child had been placed on the booklet by Mr P., who had been engaged by that company to prepare the layout of the booklet and who had found the photograph of the applicant ’ s son on the Internet. It was impossible to establish from which website the photograph of the child had been taken. The prosecutor advised the applicant to bring court proceedings to protect her rights. 13. The applicant did not lodge any judicial appeal against those replies. 2. Civil proceedings brought by the applicant 14. In March 2008 the applicant instituted civil proceedings against the Centre before the Usolskiy District Court, Perm Region (“the District Court”) on her own behalf and on behalf of her minor son. 15. In her statement of claim the applicant complained that her and her son ’ s honour, dignity and reputation had been damaged by the unlawful publication of her son ’ s photograph in a booklet calling for adoption. In particular, the photograph had been published without her authorisation and knowledge. The booklet had been distributed in various organisations in the town of Usoliye and in the Usolskiy District, Perm region (libraries, hospitals, police departments) and had provoked a negative attitude towards her and her son on the part of her colleagues, neighbours and those close to her. People thought that she had abandoned her son. The boy had become a victim of mockery in the kindergarten. The publication of the photograph had also affected her honour and dignity and her reputation as a schoolteacher. She requested that the court, with reference to Articles 151 and 152 of the Russian Civil Code (see Relevant domestic law and practice below), award her non-pecuniary damages and order the publishing company to apologise for the publication of the photograph. 16. On 23 April 2008 the District Court held, with the applicant ’ s consent, that the Centre was not a proper respondent in the case and that the claim should have been made against the publishing company and Mr P. The Centre was invited to take part in the proceedings as a third party. 17. The publishing company contested the applicant ’ s claims. It submitted that the material which had been presented to the court showed that a certain Mr Sh. had taken the photograph of the applicant ’ s son with the knowledge of the applicant. Mr Sh. had not informed the applicant of his intentions or the ways in which the photograph might be further used. Nor had he received any written authorisation from the applicant for its use. Mr P., who had been engaged by the company for the preparation of the layout of the booklet, had found the photograph on the Internet and placed it on the cover page of the booklet. 18. The publishing company considered that it had not been obliged to verify whether prior consent had been received for publication of the photograph in the booklet for two reasons. First, it was not responsible for the actions of Mr P., who had been working for the company on a contractual basis. Secondly, under Article 152.1 of the Civil Code (see Relevant domestic law below), consent to the use of a photograph was not required when the image was being used in the interests of the State, or in social or other public interests. By ordering the booklet, the Centre had been pursuing social and public interests and calling for mercy to be shown to orphans. The company concluded that the damage had been caused to the applicant by Mr Sh. and, therefore, the company should be exempted from liability for damage. 19. Mr P. submitted to the court that in 2004 he had gone travelling together with his friend Sh. , who was a photographer. Sh. had openly taken photographs of other tourists, including a photograph of the applicant ’ s son. After their return, Sh. had sent him electronic copies of those photographs and since that time they had been saved in his computer. In 2007 he (Mr P. ) had been temporarily working for the publishing company and had been asked to prepare the layout of the booklet. The text and some photographs had been provided by the Centre. He searched in his computer for more photographs to be placed in the booklet and saw the picture of the applicant ’ s son, which seemed to fit the booklet well. He therefore placed it on the cover page. He did not know who the boy on the photograph was. 20. The representative of the Centre, acting as a third party, submitted that the use of the photograph of the applicant ’ s son had not been agreed with the Centre. He also submitted that the booklet did not call for adoption; it was intended to provide information about the Centre. He replied to a question put by the court that after publication of the booklet, a number of people had called the Centre and asked whether it was possible to adopt the child whose photograph was on the cover page of the booklet. 21. It appears from the record of the court hearings that the applicant ’ s representative, G., submitted to the court that it had been established that the photograph of the applicant ’ s son had been used on the booklet without his parent ’ s consent, contrary to the requirements of Article 152.1 of the Civil Code. That provision was concordant with the provisions of the European Convention on Human Rights (“the Convention”) protecting private and family life. The publication of the photograph in the booklet constituted unlawful interference with the applicant ’ s private life and therefore the publishing company was under an obligation to pay compensation for non ‑ pecuniary damage sustained by the applicant. 22. The publishing company contested the application of Article 152.1 of the Civil Code in the case and considered that the applicant ’ s consent to the publication of her son ’ s photograph had not been required. 23. On 20 June 2008 the District Court examined and dismissed the applicant ’ s claims. The judgment consisted of a summary of the submissions of the parties and the third party, a summary of the relevant domestic law, a summary of the witnesses ’ submissions and other evidence examined by the court, and several paragraphs of conclusions. In particular, the District Court held as follows: “ ... The court has established that the honour, dignity and professional reputation of the plaintiff were not affected by the publication of the booklet with the photograph of the plaintiff ’ s son. Thus, all witnesses submitted that they did not have any hostile feelings towards Mrs Bogomolova, the attitude [towards Mrs Bogomolova] of all those questioned [in the court hearing] remained the same: friendly, amicable; they were not aware of any instances of insults, reproaches in respect of the plaintiff. In the subjective view of the witnesses, the booklet in itself had a positive scope. The plaintiff ’ s professional reputation was not affected by the publication of the booklet in any way, since the plaintiff had provided the court with positive references from her workplace, where her pedagogical competences were highly appreciated. The content of the booklet had a positive scope aimed at providing information, did not contain any defamatory details; the photograph on the booklet did not have any defects, and the text in the booklet did not contain any defamatory details either. None of the information in the booklet indicated that defamatory information had been disseminated; it did not diminish the honour, dignity and reputation of Mrs Bogomolova or of her minor son. Therefore, the evidence submitted [to the court] has demonstrated [that the booklet had] a strictly value character, and did not contain any defamatory details, diminishing the plaintiff ’ s and her son ’ s honour, dignity and reputation in the public ’ s opinion and the opinion of certain individuals. To make negative assumptions in respect of the booklet with the photograph of the plaintiff ’ s son on the front page amounts to an individual value judgment, which has not been included in the content and meaning of that information booklet. The court takes into account that on several occasions in 2004 the plaintiff authorised Mr Sh. , a photographer familiar to her, to take photographs of her son. Sh. then forwarded the photographs to painter Mr P., who [in his turn] then placed [one of] the photograph [s] in the booklet. Mrs Bogomolova did not place any restrictions or conditions on the use of those photographs, did not seek to find out what had happened to those photographs. In addition, it follows from witness statements that after publication of the booklet, the plaintiff showed it to persons around her and at her workplace and annotated it in an emotionally skewed way, and thus disseminated false information about herself and her son with reference to the photograph [on the booklet]. ... Taking into account that it has not been established in the court hearing that there was any information discrediting the honour, dignity and reputation of the plaintiff and her minor son, her claims of compensation for non-pecuniary damage should be dismissed. The court also considers that the plaintiff ’ s claims concerning the imposition of an obligation on the defendant to provide public apologies in the SMI [mass media] ... should be dismissed ... ” 24. On 25 June 2008 the applicant resigned from her job. 25. In an appeal against the judgment of 20 June 2008 the applicant submitted, in particular, that in taking its decision the District Court had not applied the provisions of Article 152.1 of the Civil Code of the Russian Federation concerning the protection of one ’ s image or the provisions of Article 8 of the Convention. She argued that in the absence of parental consent to the use of her son ’ s photograph, her claim should have been granted in accordance with the above provisions. She expanded on her position with the following arguments. 26. The booklet had been distributed in several towns in the Perm region, including Usoliye, where her parents lived, and Berezniki, where she and her son lived. She had worked for a long time in those towns and a lot of people knew her and her family. After seeing her son ’ s photograph on the booklet, people who knew her, including the parents of her pupils, thought that she could no longer take care of her son because she had been deprived of her parental rights. She had had to explain to her neighbours, friends and colleagues that her family was doing well and that her son was living with her. Since the publication of the booklet, children in the kindergarten had started calling her son “little vagrant” and “poor orphan”. She had been obliged to quit her job because of comments made by the parents of her pupils. The booklet provoked a feeling of pity towards children abandoned by their parents and at the same time it aroused feelings of indignation towards their parents. 27. On 19 August 2008 the Regional Court upheld the decision of 20 June 2008, finding it lawful and duly reasoned. Regarding the applicant ’ s argument about the District Court ’ s failure to examine her claims under Article 152.1 of the Civil Code, the Regional Court held that the court had taken a decision on the claims as they had been submitted by the applicant, in accordance with Article 196 § 3 of the Code of Civil Procedure (see Relevant domestic law and practice below). The applicant ’ s claims were based on the infringement by the defendants of her right to honour, dignity and reputation. She had not raised any claims on the grounds contained in Article 152.1 of the Civil Code. 28. By a judgment of 20 January 2009 the Justice of Peace of the Bereznikovskiy Circuit granted the Centre ’ s claim for recovery from the applicant of the legal costs it had incurred when it had taken part in the libel proceedings as a third party, in the amount of 5,200 Russian roubles. | This case concerned the use of a minor’s image without parental authorisation. The child’s photo had been featured on the cover of a booklet meant to inform the public about the local authorities’ efforts to protect orphans and the assistance available for families looking to adopt. The applicant complained that the unauthorised publication of her son’s photograph had infringed their right to private and family life. |
1,010 | Cases concerning the international military operations in Iraq during the Second Gulf War | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case may be summarised as follows. A. The applicant, his arrest and internment 9. The applicant was born in Iraq in 1957. He played for the Iraqi basketball team until, following his refusal to join the Ba’ath Party, he left Iraq in 1978 and lived in the United Arab Emirates and Pakistan. He moved to the United Kingdom in 1992, where he made a claim for asylum and was granted indefinite leave to remain. He was granted British nationality in June 2000. 10. In September 2004 the applicant and his four eldest children travelled from London to Iraq, via Dubai. He was arrested and questioned in Dubai by United Arab Emirates intelligence officers, who released him after twelve hours, permitting him and his children to continue their journey to Iraq, where they arrived on 28 September 2004. On 10 October 2004 United States soldiers, apparently acting on information provided by the British intelligence services, arrested the applicant at his sister’s house in Baghdad. He was taken to Basra in a British military aircraft and then to the Sha’aibah Divisional Temporary Detention Facility in Basra City, a detention centre run by British forces. He was held in internment there until 30 December 2007. 11. The applicant was held on the basis that his internment was necessary for imperative reasons of security in Iraq. He was believed by the British authorities to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against Coalition Forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high-tech detonation equipment into Iraq for use in attacks against Coalition Forces. No criminal charges were brought against him. 12. The applicant’s internment was initially authorised by the senior officer in the detention facility. Reviews were conducted seven days and twenty-eight days later by the Divisional Internment Review Committee (DIRC). This comprised the senior officer in the detention facility and army legal and military personnel. Owing to the sensitivity of the intelligence material upon which the applicant’s arrest and detention had been based, only two members of the DIRC were permitted to examine it. Their recommendations were passed to the Commander of the Coalition’s Multinational Division (South-East) (“the Commander”), who himself examined the intelligence file on the applicant and took the decision to continue the internment. Between January and July 2005 a monthly review was carried out by the Commander, on the basis of the recommendations of the DIRC. Between July 2005 and December 2007 the decision to intern the applicant was taken by the DIRC itself, which, during this period, included as members the Commander together with members of the legal, intelligence and other army staffs. There was no procedure for disclosure of evidence or for an oral hearing, but representations could be made by the internee in writing which were considered by the legal branch and put before the DIRC for consideration. The two Commanders who authorised the applicant’s internment in 2005 and 2006 gave evidence to the domestic courts that there was a substantial weight of intelligence material indicating that there were reasonable grounds for suspecting the applicant of the matters alleged against him. 13. When the applicant had been detained for eighteen months, the internment fell to be reviewed by the Joint Detention Committee (JDC). This body included senior representatives of the Multinational Force, the Iraqi interim government and the ambassador for the United Kingdom. It met once and thereafter delegated powers to a Joint Detention Review Committee, which comprised Iraqi representatives and officers from the Multinational Force. 14. On 14 December 2007 the Secretary of State signed an order depriving the applicant of British citizenship, on the ground that it was conducive to the public good. The Secretary of State claimed, inter alia, that the applicant had connections with violent Islamist groups, in Iraq and elsewhere, and had been responsible for recruiting terrorists outside Iraq and facilitating their travel and the smuggling of bomb parts into Iraq. 15. The applicant was released from internment on 30 December 2007 and travelled to Turkey. He appealed against the deprivation of his British citizenship. On 7 April 2009 the Special Immigration Appeals Commission dismissed his appeal, having heard both open and closed evidence, during a hearing where the applicant was represented by special advocates (see, further, A. and Others v. the United Kingdom [GC], no. 3455/05, §§ 91-93, ECHR 2009). The Special Immigration Appeals Commission held that, for reasons set out in detail in a closed judgment, it was satisfied on the balance of probabilities that the Secretary of State had proved that the applicant had facilitated the travel to Iraq of a terrorist explosives expert and conspired with him to smuggle explosives into Iraq and to conduct improvised explosive device attacks against Coalition Forces around Fallujah and Baghdad. The applicant did not appeal against the judgment. B. The domestic proceedings under the Human Rights Act 16. On 8 June 2005 the applicant brought a judicial review claim in the United Kingdom, challenging the lawfulness of his continued detention and also the refusal of the Secretary of State for Defence to return him to the United Kingdom. The Secretary of State accepted that the applicant’s detention within a British military facility brought him within the jurisdiction of the United Kingdom under Article 1 of the Convention. He also accepted that the detention did not fall within any of the permitted cases set out in Article 5 § 1 of the Convention. However, the Secretary of State contended that Article 5 § 1 did not apply to the applicant because his detention was authorised by United Nations Security Council Resolution 1546 (see paragraph 35 below) and that, as a matter of international law, the effect of the Resolution was to displace Article 5 § 1. He also denied that his refusal to return the applicant to the United Kingdom was unreasonable. It was argued on behalf of the applicant that Article 103 of the Charter of the United Nations (see paragraph 46 below) had no application since, inter alia, Resolution 1546 placed no obligation on the United Kingdom and/or since the Charter of the United Nations placed an obligation on member States to protect human rights. 17. Both the Divisional Court in its judgment of 12 August 2005 and the Court of Appeal in its judgment of 29 March 2006 unanimously held that United Nations Security Council Resolution 1546 explicitly authorised the Multinational Force to take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the annexed letter from the US Secretary of State. By the practice of the member States of the United Nations, a State which acted under such an authority was treated as having agreed to carry out the Resolution for the purposes of Article 25 of the Charter of the United Nations and as being bound by it for the purposes of Article 103 (see paragraph 46 below). The United Kingdom’s obligation under Resolution 1546 therefore took precedence over its obligations under the Convention. The Court of Appeal also held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995, since the applicant was detained in Iraq, the law governing his claim for damages for false imprisonment was Iraqi law (see R. (on the application of Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin); [2006] EWCA Civ 327) 18. The applicant appealed to the House of Lords (Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell and Lord Brown of Eaton-under-Heywood: see R. (on the application of Al-Jedda) (FC) (Appellant) v. Secretary of State for Defence (Respondent) [2007] UKHL 58, 12 December 2007). The Secretary of State raised a new argument before the House of Lords, claiming that by virtue of United Nations Security Council Resolutions 1511 and 1546 the detention of the applicant was attributable to the United Nations and was thus outside the scope of the Convention. Lord Bingham introduced the attribution issue as follows: “5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission in Article 5 of its Draft Articles on the Responsibility of International Organisations ...” He referred to the Court’s reasoning in Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007) (hereinafter “ Behrami and Saramati ”) and to the factual situation in Iraq at the relevant time and continued: “22. Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative. 23. The UN did not dispatch the Coalition Forces to Iraq. The CPA [Coalition Provisional Authority] was established by the Coalition States, notably the US, not the UN. When the Coalition States became Occupying Powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House [of Lords] as one of those considered in R. (Al-Skeini and Others) v. Secretary of State for Defence) (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR [United Nations Security Council Resolution] 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the Multinational Force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in paragraph 43 of its judgment in Behrami and Saramati ) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant. 24. The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK [United Nations Interim Administration Mission in Kosovo] a subsidiary organ of the UN. The Multinational Force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so. 25. I would resolve this first issue in favour of the appellant and against the Secretary of State.” Baroness Hale observed in this connection: “124. ... I agree with [Lord Bingham] that the analogy with the situation in Kosovo breaks down at almost every point. The United Nations made submissions to the European Court of Human Rights in Behrami v. France, Saramati v. France, Germany and Norway ... concerning the respective roles of UNMIK [United Nations Interim Administration Mission in Kosovo] and KFOR [NATO-led Kosovo Force] in clearing mines, which was the subject of the Behrami [ and Saramati ] case. It did not deny that these were UN operations for which the UN might be responsible. It seems to me unlikely in the extreme that the United Nations would accept that the acts of the [Multinational Force] were in any way attributable to the UN. My noble and learned friend, Lord Brown of Eaton-under-Heywood, has put his finger on the essential distinction. The UN’s own role in Iraq was completely different from its role in Kosovo. Its concern in Iraq was for the protection of human rights and the observance of humanitarian law as well [as] to protect its own humanitarian operations there. It looked to others to restore the peace and security which had broken down in the aftermath of events for which those others were responsible.” Lord Carswell similarly agreed with Lord Bingham on this issue (§ 131). Lord Brown also distinguished the situation in Kosovo from that in Iraq, as follows: “145. To my mind it follows that any material distinction between the two cases must be found ... in the very circumstances in which the [Multinational Force] came to be authorised and mandated in the first place. The delegation to KFOR [NATO-led Kosovo Force] of the UN’s function of maintaining security was, the Court observed [in Behrami and Saramati ], ‘neither presumed nor implicit but rather prior and explicit in the Resolution itself’. Resolution 1244 decided (paragraph 5) ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’ – the civil presence being UNMIK [United Nations Interim Administration Mission in Kosovo], recognised by the Court in Behrami [ and Saramati ] (paragraph 142) as ‘a subsidiary organ of the UN’; the security presence being KFOR. KFOR was, therefore, expressly formed under UN auspices. Paragraph 7 of the Resolution ‘[a]uthorise[d] member States and relevant international organisations to establish the international security presence in Kosovo as set out in point 4 of Annex 2 ...’. Point 4 of Annex 2 stated: ‘The international security presence with substantial NATO participation must be deployed under unified command and control and authorised to establish a safe environment for all people in Kosovo and to facilitate the safe return to their homes of all displaced persons and refugees.’ 146. Resolution 1511, by contrast, was adopted on 16 October 2003 during the USA’s and UK’s post-combat occupation of Iraq and in effect gave recognition to those occupying forces as an existing security presence. ... ... 148. Nor did the position change when Resolution 1546 was adopted on 8 June 2004, three weeks before the end of the occupation and the transfer of authority from the CPA [Coalition Provisional Authority] to the interim government of Iraq on 28 June 2004. ... Nothing either in the Resolution [1546] itself or in the letters annexed suggested for a moment that the [Multinational Force] had been under or was now being transferred to United Nations authority and control. True, the [Security Council] was acting throughout under Chapter VII of the Charter [of the United Nations]. But it does not follow that the UN is therefore to be regarded as having assumed ultimate authority or control over the Force. The precise meaning of the term ‘ultimate authority and control’ I have found somewhat elusive. But it cannot automatically vest or remain in the UN every time there is an authorisation of UN powers under Chapter VII, else much of the analysis in Behrami [ and Saramati ] would be mere surplusage.” 19. Lord Rodger dissented on this point. He found that the legal basis on which the members of the NATO-led Kosovo Force (KFOR) were operating in Kosovo could not be distinguished from that on which British forces in the Multinational Force were operating during the period of the applicant’s internment. He explained his views as follows: “59. There is an obvious difference between the factual position in Kosovo that lay behind the Behrami [ and Saramati ] case and the factual position in Iraq that lies behind the present case. The forces making up KFOR went into Kosovo, for the first time, as members of KFOR and in terms of Security Council Resolution 1244. By contrast, the Coalition Forces were in Iraq and, indeed, in occupation of Iraq, for about six months before the Security Council adopted Resolution 1511, authorising the creation of the [Multinational Force], on 16 October 2003. ... 61. It respectfully appears to me that the mere fact that Resolution 1244 was adopted before the forces making up KFOR entered Kosovo was legally irrelevant to the issue in Behrami [ and Saramati ]. What mattered was that Resolution 1244 had been adopted before the French members of KFOR detained Mr Saramati. So the Resolution regulated the legal position at the time of his detention. Equally, in the present case, the fact that the British and other Coalition Forces were in Iraq long before Resolution 1546 was adopted is legally irrelevant for present purposes. What matters is that Resolution 1546 was adopted before the British forces detained the appellant and so it regulated the legal position at that time. As renewed, the provisions of that Resolution have continued to do so ever since. ... 87. If one compares the terms of Resolution 1244 and Resolution 1511, for present purposes there appears to be no relevant legal difference between the two Forces. Of course, in the case of Kosovo, there was no civil administration and there were no bodies of troops already assembled in Kosovo whom the Security Council could authorise to assume the necessary responsibilities. In paragraph 5 of Resolution 1244 the Security Council accordingly decided ‘on the deployment in Kosovo, under United Nations auspices, of international civil and security presences’. Because there were no suitable troops on the ground, in paragraph 7 of Resolution 1244 the Council had actually to authorise the establishing of the international security presence and then to authorise it to carry out various responsibilities. 88. By contrast, in October 2003, in Iraq there were already forces in place, especially American and British forces, whom the Security Council could authorise to assume the necessary responsibilities. So it did not need to authorise the establishment of the [Multinational Force]. In paragraph 13 the Council simply authorised ‘a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq’ – thereby proceeding on the basis that there would indeed be a Multinational Force under unified command. In paragraph 14 the Council urged member States to contribute forces to the [Multinational Force]. Absolutely crucially, however, in paragraph 13 it spelled out the mandate which it was giving to the [Multinational Force]. By ‘authorising’ the [Multinational Force] to take the measures required to fulfil its ‘mandate’, the Council was asserting and exercising control over the [Multinational Force] and was prescribing the mission that it was to carry out. The authorisation and mandate were to apply to all members of the [Multinational Force] – the British and American, of course, but also those from member States who responded to the Council’s call to contribute forces to the [Multinational Force]. The intention must have been that all would be in the same legal position. This confirms that – as I have already held, at paragraph 61 – the fact that the British forces were in Iraq before Resolution 1511 was adopted is irrelevant to their legal position under that Resolution and, indeed, under Resolution 1546.” 20. The second issue before the House of Lords was whether the provisions of Article 5 § 1 of the Convention were qualified by the legal regime established pursuant to United Nations Security Council Resolution 1546 and subsequent resolutions. On this point, the House of Lords unanimously held that Article 103 of the Charter of the United Nations gave primacy to resolutions of the Security Council, even in relation to human rights agreements. Lord Bingham, with whom the other Law Lords agreed, explained: “30. ... while the Secretary of State contends that the Charter [of the United Nations], and UNSCRs [United Nations Security Council Resolutions] 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant’s conflicting right under Article 5 § 1 of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and Article 103 [of the Charter] is not engaged. 31. There is an obvious attraction in the appellant’s argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paragraphs 12 and 15, the Resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant’s argument is not sound, for three main reasons. 32. First, it appears to me that during the period when the UK was an Occupying Power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi interim government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. [Lord Bingham here referred to Article 43 of the Hague Regulations and Articles 41, 42 and 78 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War: for the text of these Articles, see paragraphs 42 and 43 of this judgment below.] These three Articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the Occupying Power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the Occupying Power there must be an obligation to detain such a person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) [2005] ICJ Reports 116, paragraph 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later Resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation. 33. There are, secondly, some situations in which the Security Council can adopt resolutions couched in mandatory terms. One example is UNSCR 820 (1993), considered by the European Court (with reference to an EC regulation giving effect to it) in Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland [[GC], no. 45036/98, ECHR 2005-VI] (2005) 42 EHRR 1, which decided in paragraph 24 that ‘all States shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories ...’. Such provisions cause no difficulty in principle, since member States can comply with them within their own borders and are bound by Article 25 of the UN Charter to comply. But language of this kind cannot be used in relation to military or security operations overseas, since the UN and the Security Council have no standing forces at their own disposal and have concluded no agreements under Article 43 of the Charter which entitle them to call on member States to provide them. Thus in practice the Security Council can do little more than give its authorisation to member States which are willing to conduct such tasks, and this is what (as I understand) it has done for some years past. Even in UNSCR 1244 (1999) relating to Kosovo, when (as I have concluded) the operations were very clearly conducted under UN auspices, the language of authorisation was used. There is, however, a strong and to my mind persuasive body of academic opinion which would treat Article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds.), Charter of the United Nations: Commentary and Documents, 3rd edn. (1969), pp. 615-16; Yearbook of the International Law Commission (1979), Vol. II, Part One, paragraph 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp. 150-51. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed.), The Charter of the United Nations: A Commentary, 2nd edn. (2002), p. 729: ‘Such authorisations, however, create difficulties with respect to Article 103. According to the latter provision, the Charter – and thus also SC [Security Council] Resolutions – override existing international law only in so far as they create “obligations” (cf. Bernhardt on Article 103 MN 27 et seq.). One could conclude that in case a State is not obliged but merely authorised to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with State practice at least as regards authorisations of military action. These authorisations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorisations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of Article 103 should be reconciled with that of Article 42, and the prevalence over treaty obligations should be recognised for the authorisation of military action as well (see Frowein/Krisch on Article 42 MN 28). The same conclusion seems warranted with respect to authorisations of economic measures under Article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace – it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of Article 103 to all action under Articles 41 and 42 and not only to mandatory measures.’ This approach seems to me to give a purposive interpretation to Article 103 of the Charter, in the context of its other provisions, and to reflect the practice of the UN and member States as it has developed over the past sixty years. 34. I am further of the opinion, thirdly, that in a situation such as the present ‘obligations’ in Article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the Articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of States chose not to contribute to the Multinational Force, but those which did (including the UK) became bound by Articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it. 35. Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in Article 103 to ‘any other international agreement’ leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decision of the International Court of Justice ( Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial incident at Lockerbie (Libyan Arab Jamahiriya v. United Kingdom ) [1992] ICJ Reports 3, paragraph 39, and Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1993] ICJ Reports 325, 439 ‑ 40, paragraphs 99-100 per Judge ad hoc Lauterpacht) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments ( The Charter of the United Nations: A Commentary, 2nd edn., ed Simma, [2002,] pp. 1299 ‑ 300).” Lord Bingham concluded on this issue: “39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR [United Nations Security Council Resolution] 1546 and successive resolutions, but must ensure that the detainee’s rights under Article 5 are not infringed to any greater extent than is inherent in such detention. I would resolve the second issue in this sense.” 21. Baroness Hale commenced by observing: “122. ... There is no doubt that prolonged detention in the hands of the military is not permitted by the laws of the United Kingdom. Nor could it be permitted without derogation from our obligations under the European Convention on Human Rights. Article 5 § 1 of the Convention provides that deprivation of liberty is only lawful in defined circumstances which do not include these. The drafters of the Convention had a choice between a general prohibition of ‘arbitrary’ detention, as provided in Article 9 of the Universal Declaration of Human Rights, and a list of permitted grounds for detention. They deliberately chose the latter. They were well aware of Churchill’s view that the internment even of enemy aliens in war time was ‘in the highest degree odious’. They would not have contemplated the indefinite detention without trial of British citizens in peacetime. I do not accept that this is less of a problem if people are suspected of very grave crimes. The graver the crime of which a person is suspected, the more difficult it will be for him to secure his release on the grounds that he is not a risk. The longer therefore he is likely to be incarcerated and the less substantial the evidence which will be relied upon to prove suspicion. These are the people most in need of the protection of the rule of law, rather than the small fry in whom the authorities will soon lose interest.” Baroness Hale agreed with Lord Bingham that the Convention rights could be qualified by “competing commitments under the United Nations Charter”, but continued: “126. That is, however, as far as I would go. The right is qualified but not displaced. This is an important distinction, insufficiently explored in the all or nothing arguments with which we were presented. We can go no further than the UN has implicitly required us to go in restoring peace and security to a troubled land. The right is qualified only to the extent required or authorised by the Resolution. What remains of it thereafter must be observed. This may have both substantive and procedural consequences. 127. It is not clear to me how far UNSC [United Nations Security Council] Resolution 1546 went when it authorised the [Multinational Force] to ‘take all necessary measures to contribute to the maintenance of security and stability in Iraq, in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks’ (paragraph 10). The ‘broad range of tasks’ were listed by Secretary of State Powell as including ‘combat operations against members of these groups [seeking to influence Iraq’s political future through violence], internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security’. At the same time, the Secretary of State made clear the commitment of the forces which made up the MNF [Multinational Force] to ‘act consistently with their obligations under the law of armed conflict, including the Geneva Conventions’. 128. On what basis is it said that the detention of this particular appellant is consistent with our obligations under the law of armed conflict? He is not a ‘protected person’ under the Fourth Geneva Convention because he is one of our own citizens. Nor is the UK any longer in belligerent occupation of any part of Iraq. So resort must be had to some sort of post-conflict, post-occupation, analogous power to intern anyone where this is thought ‘necessary for imperative reasons of security’. Even if the UNSC Resolution can be read in this way, it is not immediately obvious why the prolonged detention of this person in Iraq is necessary, given that any problem he presents in Iraq could be solved by repatriating him to this country and dealing with him here. If we stand back a little from the particular circumstances of this case, this is the response which is so often urged when British people are in trouble with the law in foreign countries, and in this case it is within the power of the British authorities to achieve it. 129. But that is not the way in which the argument has been conducted before us. Why else could Lord Bingham and Lord Brown speak of ‘displacing or qualifying’ in one breath when clearly they mean very different things? We have been concerned at a more abstract level with attribution to or authorisation by the United Nations. We have devoted little attention to the precise scope of the authorisation. There must still be room for argument about what precisely is covered by the Resolution and whether it applies on the facts of this case. Quite how that is to be done remains for decision in the other proceedings. With that caveat, therefore, but otherwise in agreement with Lord Bingham, Lord Carswell and Lord Brown, I would dismiss this appeal.” 22. Lord Carswell started his speech by observing: “130. Internment without trial is so antithetical to the rule of law as understood in a democratic society that recourse to it requires to be carefully scrutinised by the courts of that society. There are, regrettably, circumstances in which the threat to the necessary stability of the State is so great that in order to maintain that stability the use of internment is unavoidable. The Secretary of State’s contention is that such circumstances exist now in Iraq and have existed there since the conclusion of hostilities in 2003. If the intelligence concerning the danger posed by such persons is correct, – as to which your Lordships are not in a position to make any judgment and do not do so – they pose a real danger to stability and progress in Iraq. If sufficient evidence cannot be produced in criminal proceedings – which again the House [of Lords] has not been asked to and cannot judge – such persons may have to be detained without trial. Article 42 of the Fourth Geneva Convention permits the ordering of internment of protected persons ‘only if the security of the Detaining Power makes it absolutely necessary’, and under Article 78 the Occupying Power must consider that step necessary ‘for imperative reasons of security’. Neither of these provisions applies directly to the appellant, who is not a protected person, but the degree of necessity which should exist before the Secretary of State detains persons in his position – if he has power to do so, as in my opinion he has – is substantially the same. I would only express the opinion that where a State can lawfully intern people, it is important that it adopt certain safeguards: the compilation of intelligence about such persons which is as accurate and reliable as possible, the regular review of the continuing need to detain each person and a system whereby that need and the underlying evidence can be checked and challenged by representatives on behalf of the detained persons, so far as is practicable and consistent with the needs of national security and the safety of other persons.” He continued: “135. It was argued on behalf of the appellant that the Resolution did not go further than authorising the measures described in it, as distinct from imposing an obligation to carry them out, with the consequence that Article 103 of the Charter [of the United Nations] did not apply to relieve the United Kingdom from observing the terms of Article 5 § 1 of the Convention. This was an attractive and persuasively presented argument, but I am satisfied that it cannot succeed. For the reasons set out in paragraphs 32 to 39 of Lord Bingham’s opinion I consider that Resolution 1546 did operate to impose an obligation upon the United Kingdom to carry out those measures. In particular, I am persuaded by State practice and the clear statements of authoritative academic opinion – recognised sources of international law – that expressions in Security Council resolutions which appear on their face to confer no more than authority or power to carry out measures may take effect as imposing obligations, because of the fact that the United Nations have no standing forces at their own disposal and have concluded no agreements under Article 43 of the Charter which would entitle them to call on member States to provide them. 136. I accordingly am of [the] opinion that the United Kingdom may lawfully, where it is necessary for imperative reasons of security, exercise the power to intern conferred by Resolution 1546. I would emphasise, however, that that power has to be exercised in such a way as to minimise the infringements of the detainee’s rights under Article 5 § 1 of the Convention, in particular by adopting and operating to the fullest practicable extent safeguards of the nature of those to which I referred in paragraph 130 above.” C. The applicant’s claim for damages under Iraqi law 23. Following the Court of Appeal’s ruling on the applicable legal regime (see paragraph 17 above), which was upheld by the House of Lords, the applicant brought a claim for damages in the English courts claiming that, from 19 May 2006 onwards, his detention without judicial review was unlawful under the terms of the Iraqi Constitution, which came into force on that date (see paragraph 38 below). 24. This claim was finally determined by the Court of Appeal in a judgment dated 8 July 2010 ([2010] EWCA Civ 758). The majority found that, in the circumstances, the review procedure under Coalition Provisional Authority Memorandum No. 3 (Revised) (see paragraph 36 below) provided sufficient guarantees of fairness and independence to comply with Iraqi law. D. Background: the occupation of Iraq from 1 May 2003 to 28 June 2004 1. United Nations Security Council Resolution 1441 (2002) 25. On 8 November 2002 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 1441. The Resolution decided, inter alia, that Iraq had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 1441 decided to afford Iraq a final opportunity to comply with its disarmament obligations and set up an enhanced inspection regime. It requested the Secretary-General of the United Nations immediately to notify Iraq of the Resolution and demanded that Iraq cooperate immediately, unconditionally, and actively with the inspectors. Resolution 1441 concluded by recalling that the United Nations Security Council had “repeatedly warned Iraq that it w[ould] face serious consequences as a result of its continued violations of its obligations”. The United Nations Security Council decided to remain seised of the matter. 2. Major combat operations: 20 March to 1 May 2003 26. On 20 March 2003 a Coalition of armed forces under unified command, led by the United States of America with a large force from the United Kingdom and small contingents from Australia, Denmark and Poland, commenced the invasion of Iraq. By 5 April 2003 the British had captured Basra and by 9 April 2003 United States troops had gained control of Baghdad. Major combat operations in Iraq were declared complete on 1 May 2003. Thereafter, other States sent troops to help with the reconstruction efforts in Iraq. 3. Legal and political developments in May 2003 27. On 8 May 2003 the Permanent Representatives of the United Kingdom and the United States of America at the United Nations addressed a joint letter to the President of the United Nations Security Council, which read as follows: “The United States of America, the United Kingdom of Great Britain and Northern Ireland and Coalition partners continue to act together to ensure the complete disarmament of Iraq of weapons of mass destruction and means of delivery in accordance with United Nations Security Council Resolutions. The States participating in the Coalition will strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the people of Iraq. ... In order to meet these objectives and obligations in the post-conflict period in Iraq, the United States, the United Kingdom and Coalition partners, acting under existing command and control arrangements through the Commander of Coalition Forces, have created the Coalition Provisional Authority, which includes the Office of Reconstruction and Humanitarian Assistance, to exercise powers of government temporarily, and, as necessary, especially to provide security, to allow the delivery of humanitarian aid, and to eliminate weapons of mass destruction. The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall, inter alia, provide for security in and for the provisional administration of Iraq, including by: deterring hostilities; ... maintaining civil law and order, including through encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; eliminating all terrorist infrastructure and resources within Iraq and working to ensure that terrorists and terrorist groups are denied safe haven; ... and assuming immediate control of Iraqi institutions responsible for military and security matters and providing, as appropriate, for the demilitarisation, demobilisation, control, command, reformation, disestablishment, or reorganisation of those institutions so that they no longer pose a threat to the Iraqi people or international peace and security but will be capable of defending Iraq’s sovereignty and territorial integrity. ... The United Nations has a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq, and in helping in the formation of an Iraqi interim authority. The United States, the United Kingdom and Coalition partners are ready to work closely with representatives of the United Nations and its specialised agencies and look forward to the appointment of a special coordinator by the Secretary-General. We also welcome the support and contributions of member States, international and regional organisations, and other entities, under appropriate coordination arrangements with the Coalition Provisional Authority. We would be grateful if you could arrange for the present letter to be circulated as a document of the Security Council. (Signed) Jeremy GreenstockPermanent Representative of the United Kingdom (Signed) John D. NegropontePermanent Representative of the United States” 28. As mentioned in the above letter, the occupying States, acting through the Commander of Coalition Forces, created the Coalition Provisional Authority (CPA) to act as a “caretaker administration” until an Iraqi government could be established. It had power, inter alia, to issue legislation. On 13 May 2003 the US Secretary of Defence, Donald Rumsfeld, issued a memorandum formally appointing Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. In CPA Regulation No. 1, dated 16 May 2003, Ambassador Bremer provided, inter alia, that the CPA “shall exercise powers of government temporarily in order to provide for the effective administration of Iraq during the period of transitional administration” and that: “2. The CPA is vested with all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war. This authority shall be exercised by the CPA Administrator. 3. As the Commander of Coalition Forces, the Commander of US Central Command shall directly support the CPA by deterring hostilities; maintaining Iraq’s territorial integrity and security; searching for, securing and destroying weapons of mass destruction; and assisting in carrying out Coalition policy generally.” The CPA administration was divided into regional areas. CPA South was placed under United Kingdom responsibility and control, with a United Kingdom Regional Coordinator. It covered the southernmost four of Iraq’s eighteen provinces, each having a governorate coordinator. United Kingdom troops were deployed in the same area. 29. United Nations Security Council Resolution 1483 referred to by Ambassador Bremer in CPA Regulation No. 1 was actually adopted six days later, on 22 May 2003. It provided as follows: “ The Security Council, Recalling all its previous relevant resolutions, ... Resolved that the United Nations should play a vital role in humanitarian relief, the reconstruction of Iraq, and the restoration and establishment of national and local institutions for representative governance, ... Welcoming also the resumption of humanitarian assistance and the continuing efforts of the Secretary-General and the specialised agencies to provide food and medicine to the people of Iraq, Welcoming the appointment by the Secretary-General of his Special Adviser on Iraq, ... Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognising the specific authorities, responsibilities, and obligations under applicable international law of these States as Occupying Powers under unified command (the ‘Authority’), Noting further that other States that are not Occupying Powers are working now or in the future may work under the Authority, Welcoming further the willingness of member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority, ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Appeals to member States and concerned organisations to assist the people of Iraq in their efforts to reform their institutions and rebuild their country, and to contribute to conditions of stability and security in Iraq in accordance with this Resolution; 2. Calls upon all member States in a position to do so to respond immediately to the humanitarian appeals of the United Nations and other international organisations for Iraq and to help meet the humanitarian and other needs of the Iraqi people by providing food, medical supplies, and resources necessary for reconstruction and rehabilitation of Iraq’s economic infrastructure; ... 4. Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future; 5. Calls upon all concerned to comply fully with their obligations under international law including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907; ... 8. Requests the Secretary-General to appoint a Special Representative for Iraq whose independent responsibilities shall involve reporting regularly to the Council on his activities under this Resolution, coordinating activities of the United Nations in post-conflict processes in Iraq, coordinating among United Nations and international agencies engaged in humanitarian assistance and reconstruction activities in Iraq, and, in coordination with the Authority, assisting the people of Iraq through: (a) coordinating humanitarian and reconstruction assistance by United Nations agencies and between United Nations agencies and non-governmental organisations; (b) promoting the safe, orderly, and voluntary return of refugees and displaced persons; (c) working intensively with the Authority, the people of Iraq, and others concerned to advance efforts to restore and establish national and local institutions for representative governance, including by working together to facilitate a process leading to an internationally recognised, representative government of Iraq; (d) facilitating the reconstruction of key infrastructure, in cooperation with other international organisations; (e) promoting economic reconstruction and the conditions for sustainable development, including through coordination with national and regional organisations, as appropriate, civil society, donors, and the international financial institutions; (f) encouraging international efforts to contribute to basic civilian administration functions; (g) promoting the protection of human rights; (h) encouraging international efforts to rebuild the capacity of the Iraqi civilian police force; and (i) encouraging international efforts to promote legal and judicial reform; ... 24. Requests the Secretary-General to report to the Council at regular intervals on the work of the Special Representative with respect to the implementation of this Resolution and on the work of the International Advisory and Monitoring Board and encourages the United Kingdom of Great Britain and Northern Ireland and the United States of America to inform the Council at regular intervals of their efforts under this Resolution; 25. Decides to review the implementation of this Resolution within twelve months of adoption and to consider further steps that might be necessary. 26. Calls upon member States and international and regional organisations to contribute to the implementation of this Resolution; 27. Decides to remain seised of this matter.” 4. Developments between July 2003 and June 2004 30. In July 2003 the Governing Council of Iraq was established. The CPA was required to consult with it on all matters concerning the temporary governance of Iraq. 31. On 16 October 2003 the United Nations Security Council passed Resolution 1511, which provided, inter alia, as follows: “ The Security Council ... Recognising that international support for restoration of conditions of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003), ... Determining that the situation in Iraq, although improved, continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Reaffirms the sovereignty and territorial integrity of Iraq, and underscores, in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognised and set forth in Resolution 1483 (2003), which will cease when an internationally recognised, representative government established by the people of Iraq is sworn in and assumes the responsibilities of the Authority, inter alia, through steps envisaged in paragraphs 4 through 7 and 10 below; ... 8. Resolves that the United Nations, acting through the Secretary-General, his Special Representative, and the United Nations Assistance Mission [for] Iraq, should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government; ... 13. Determines that the provision of security and stability is essential to the successful completion of the political process as outlined in paragraph 7 above and to the ability of the United Nations to contribute effectively to that process and the implementation of Resolution 1483 (2003), and authorises a Multinational Force under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of the United Nations Assistance Mission for Iraq, the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure; 14. Urges member States to contribute assistance under this United Nations mandate, including military forces, to the Multinational Force referred to in paragraph 13 above; ... 25. Requests that the United States, on behalf of the Multinational Force as outlined in paragraph 13 above, report to the Security Council on the efforts and progress of this Force as appropriate and not less than every six months; 26. Decides to remain seised of the matter.” 32. Reporting to the United Nations Security Council on 16 April 2004, the United States Permanent Representative said that the Multinational Force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security”. In a submission made by the CPA to the United Nations Office of the High Commissioner for Human Rights on 28 May 2004 it was stated that the United States and United Kingdom military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody. 33. On 3 June 2004 the Iraqi Foreign Minister told the United Nations Security Council: “We seek a new and unambiguous draft resolution that underlines the transfer of full sovereignty to the people of Iraq and their representatives. The draft resolution must mark a clear departure from Security Council Resolutions 1483 (2003) and 1511 (2003) which legitimised the occupation of our country. ... However, we have yet to reach the stage of being able to maintain our own security and therefore the people of Iraq need and request the assistance of the Multinational Force to work closely with Iraqi forces to stabilise the situation. I stress that any premature departure of international troops would lead to chaos and the real possibility of civil war in Iraq. This would cause a humanitarian crisis and provide a foothold for terrorists to launch their evil campaign in our country and beyond our borders. The continued presence of the Multinational Force will help preserve Iraq’s unity, prevent regional intervention in our affairs and protect our borders at this critical stage of our reconstruction.” 34. On 5 June 2004, the Prime Minister of the interim government of Iraq, Dr Allawi, and the US Secretary of State, Mr Powell, wrote to the President of the Security Council, as follows: “Republic of Iraq, Prime Minister Office. Excellency: On my appointment as Prime Minister of the interim government of Iraq, I am writing to express the commitment of the people of Iraq to complete the political transition process to establish a free, and democratic Iraq and to be a partner in preventing and combating terrorism. As we enter a critical new stage, regain full sovereignty and move towards elections, we will need the assistance of the international community. The interim government of Iraq will make every effort to ensure that these elections are fully democratic, free and fair. Security and stability continue to be essential to our political transition. There continue, however, to be forces in Iraq, including foreign elements, that are opposed to our transition to peace, democracy, and security. The government is determined to overcome these forces, and to develop security forces capable of providing adequate security for the Iraqi people. Until we are able to provide security for ourselves, including the defence of Iraq’s land, sea and air space, we ask for the support of the Security Council and the international community in this endeavour. We seek a new resolution on the Multinational Force (MNF) mandate to contribute to maintaining security in Iraq, including through the tasks and arrangements set out in the letter from Secretary of State Colin Powell to the President of the United Nations Security Council. ... ... We are ready to take sovereign responsibility for governing Iraq by 30 June. We are well aware of the difficulties facing us, and of our responsibilities to the Iraqi people. The stakes are great, and we need the support of the international community to succeed. We ask the Security Council to help us by acting now to adopt a Security Council resolution giving us necessary support. I understand that the Co-sponsors intend to annex this letter to the Resolution on Iraq under consideration. In the meantime, I request that you provide copies of this letter to members of the Council as quickly as possible. (Signed) Dr Ayad Allawi” “The Secretary of State, Washington. Excellency: Recognising the request of the government of Iraq for the continued presence of the Multinational Force (MNF) in Iraq, and following consultations with Prime Minister Ayad Allawi of the Iraqi interim government, I am writing to confirm that the MNF under unified command is prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism and protecting the territory of Iraq. The goal of the MNF will be to help the Iraqi people to complete the political transition and will permit the United Nations and the international community to work to facilitate Iraq’s reconstruction. ... Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure Force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. ... ... In order to continue to contribute to security, the MNF must continue to function under a framework that affords the Force and its personnel the status that they need to accomplish their mission, and in which the contributing States have responsibility for exercising jurisdiction over their personnel and which will ensure arrangements for, and use of assets by, the MNF. The existing framework governing these matters is sufficient for these purposes. In addition, the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions. The MNF is prepared to continue to pursue its current efforts to assist in providing a secure environment in which the broader international community is able to fulfil its important role in facilitating Iraq’s reconstruction. In meeting these responsibilities in the period ahead, we will act in full recognition of and respect for Iraqi sovereignty. We look to other member States and international and regional organisations to assist the people of Iraq and the sovereign Iraqi government in overcoming the challenges that lie ahead to build a democratic, secure and prosperous country. The co-sponsors intend to annex this letter to the Resolution on Iraq under consideration. In the meantime, I request that you provide copies of this letter to members of the Council as quickly as possible. (Signed) Colin L. Powell” 35. Provision for the new regime was made in United Nations Security Council Resolution 1546, adopted on 8 June 2004. It provided as follows, with the above letters from Dr Allawi and Mr Powell annexed: “ The Security Council, Welcoming the beginning of a new phase in Iraq’s transition to a democratically elected government, and looking forward to the end of the occupation and the assumption of full responsibility and authority by a fully sovereign and independent interim government of Iraq by 30 June 2004, Recalling all of its previous relevant resolutions on Iraq, ... Recalling the establishment of the United Nations Assistance Mission for Iraq (UNAMI) on 14 August 2003, and affirming that the United Nations should play a leading role in assisting the Iraqi people and government in the formation of institutions for representative government, Recognising that international support for restoration of stability and security is essential to the well-being of the people of Iraq as well as to the ability of all concerned to carry out their work on behalf of the people of Iraq, and welcoming member State contributions in this regard under Resolution 1483 (2003) of 22 May 2003 and Resolution 1511 (2003), Recalling the report provided by the United States to the Security Council on 16 April 2004 on the efforts and progress made by the Multinational Force, Recognising the request conveyed in the letter of 5 June 2004 from the Prime Minister of the interim government of Iraq to the President of the Council, which is annexed to this Resolution, to retain the presence of the Multinational Force, ... Welcoming the willingness of the Multinational Force to continue efforts to contribute to the maintenance of security and stability in Iraq in support of the political transition, especially for upcoming elections, and to provide security for the United Nations presence in Iraq, as described in the letter of 5 June 2004 from the United States Secretary of State to the President of the Council, which is annexed to this Resolution, Noting the commitment of all forces promoting the maintenance of security and stability in Iraq to act in accordance with international law, including obligations under international humanitarian law, and to cooperate with relevant international organisations, ... Determining that the situation in Iraq continues to constitute a threat to international peace and security, Acting under Chapter VII of the Charter of the United Nations, 1. Endorses the formation of a sovereign interim government of Iraq ... which will assume full responsibility and authority by 30 June 2004 for governing Iraq ...; 2. Welcomes that, also by 30 June 2004, the occupation will end and the Coalition Provisional Authority will cease to exist, and that Iraq will reassert its full sovereignty; ... 7. Decides that in implementing, as circumstances permit, their mandate to assist the Iraqi people and government, the Special Representative of the Secretary-General and the United Nations Assistance Mission for Iraq (UNAMI), as requested by the government of Iraq, shall: (a) play a leading role to: (i) assist in the convening, during the month of July 2004, of a national conference to select a Consultative Council; (ii) advise and support the Independent Electoral Commission of Iraq, as well as the interim government of Iraq and the Transitional National Assembly, on the process for holding elections; (iii) promote national dialogue and consensus-building on the drafting of a national Constitution by the people of Iraq; (b) and also: (i) advise the government of Iraq in the development of effective civil and social services; (ii) contribute to the coordination and delivery of reconstruction, development, and humanitarian assistance; (iii) promote the protection of human rights, national reconciliation, and judicial and legal reform in order to strengthen the rule of law in Iraq; and (iv) advise and assist the government of Iraq on initial planning for the eventual conduct of a comprehensive census; ... 9. Notes that the presence of the Multinational Force in Iraq is at the request of the incoming interim government of Iraq and therefore reaffirms the authorisation for the Multinational Force under unified command established under Resolution 1511 (2003), having regard to the letters annexed to this Resolution; 10. Decides that the Multinational Force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this Resolution expressing, inter alia, the Iraqi request for the continued presence of the Multinational Force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; ... 15. Requests member States and international and regional organisations to contribute assistance to the Multinational Force, including military forces, as agreed with the government of Iraq, to help meet the needs of the Iraqi people for security and stability, humanitarian and reconstruction assistance, and to support the efforts of UNAMI; ... 30. Requests the Secretary-General to report to the Council within three months from the date of this Resolution on UNAMI operations in Iraq, and on a quarterly basis thereafter on the progress made towards national elections and fulfilment of all UNAMI’s responsibilities; 31. Requests that the United States, on behalf of the Multinational Force, report to the Council within three months from the date of this Resolution on the efforts and progress of this Force, and on a quarterly basis thereafter; 32. Decides to remain actively seised of the matter.” 36. On 18 June 2003 the CPA had issued Memorandum No. 3, which set out provisions on criminal detention and security internment by the Coalition Forces. A revised version of Memorandum No. 3 was issued on 27 June 2004. It provided as follows: Section 6: MNF Security Internee Process “(1) Any person who is detained by a national contingent of the MNF [Multinational Force] for imperative reasons of security in accordance with the mandate set out in UNSCR [United Nations Security Council Resolution] 1546 (hereinafter ‘security internee’) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. (2) The review must take place with the least possible delay and in any case must be held no later than seven days after the date of induction into an internment facility. (3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case not later than six months from the date of induction into an internment facility. (4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with section IV of the Fourth Geneva Convention. (5) Security internees who are placed in internment after 30 June 2004 must in all cases only be held for so long as the imperative reasons of security in relation to the internee exist and in any case must be either released from internment or transferred to the Iraqi criminal jurisdiction no later than eighteen months from the date of induction into an MNF internment facility. Any person under the age of 18 interned at any time shall in all cases be released not later than twelve months after the initial date of internment. (6) Where it is considered that, for continuing imperative reasons of security, a security internee placed in internment after 30 June 2004 who is over the age of 18 should be retained in internment for longer than eighteen months, an application shall be made to the Joint Detention Committee (JDC) for approval to continue internment for an additional period. In dealing with the application, the members of the JDC will present recommendations to the co-chairs who must jointly agree that the internment may continue and shall specify the additional period of internment. While the application is being processed the security internee may continue to be held in internment but in any case the application must be finalised not later than two months from the expiration of the initial eighteen-month internment period. (7) Access to internees shall be granted to the Ombudsman. Access will only be denied the Ombudsman for reasons of imperative military necessity as an exceptional and temporary measure. The Ombudsman shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private and to record information regarding an internee. (8) Access to internees shall be granted to official delegates of the ICRC [International Committee of the Red Cross]. Access will only be denied the delegates for reasons of imperative military necessity as an exceptional and temporary measure. The ICRC delegates shall be permitted to inspect health, sanitation and living conditions and to interview all internees in private. They shall also be permitted to record information regarding an internee and may pass messages to and from the family of an internee subject to reasonable censorship by the facility authorities. ...” 5. The end of the occupation and subsequent developments 37. On 28 June 2004 full authority was transferred from the CPA to the Iraqi interim government, and the CPA ceased to exist. Subsequently, the Multinational Force, including the British forces forming part of it, remained in Iraq pursuant to requests by the Iraqi government and authorisations from the United Nations Security Council. 38. On 19 May 2006 the new Iraqi Constitution was adopted. It provided that any law which contradicted its provisions was deemed to be void. Article 15 of the Constitution required, inter alia, that any deprivation of liberty must be based on a decision issued by a competent judicial authority and Article 37 provided that no one should be kept in custody except according to a judicial decision. 39. The authorisation for the presence of the Multinational Force in Iraq under United Nations Security Council Resolution 1546 was extended by Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006 until 31 December 2006 and 31 December 2007 respectively. These Resolutions also annexed an exchange of letters between the Prime Minister of Iraq and the US Secretary of State, Condoleezza Rice, referring back to the original exchange of letters annexed to Resolution 1546. 6. Reports to the United Nations Security Council on the internment regime in Iraq 40. On 7 June 2005, as required by Resolution 1546, the Secretary-General of the United Nations reported to the Security Council on the situation in Iraq (S/2005/373). Under the heading “Human rights activities” he stated, inter alia : “70. The volume of reports on human rights violations in Iraq justifies serious concern. Accounts of human rights violations continue to appear in the press, in private security reports and in reports by local human rights groups. Individual accounts provided to UNAMI [United Nations Assistance Mission for Iraq] and admissions by the authorities concerned provide additional indications about this situation. In many cases, the information about violations has been widely publicised. Effective monitoring of the human rights situation remains a challenge, particularly because the current security situation makes it difficult to obtain evidence and further investigate allegations. In most instances, however, the consistency of accounts points to clear patterns. ... 72. ... One of the major human rights challenges remains the detention of thousands of persons without due process. According to the Ministry of Justice, there were approximately 10,000 detainees at the beginning of April, 6,000 of whom were in the custody of the Multinational Force. Despite the release of some detainees, their number continues to grow. Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency.” Similar concerns were repeated in his reports of September and December 2005 (S/2005/585, § 52; S/2005/766, § 47) and March, June, September and December 2006 (S/2006/137, § 54; S/2006/360, § 47; S/2006/706, § 36; S/2006/945, § 45). By the end of 2006, he reported that there were 13,571 detainees in Multinational Force detention centres. In his report of March 2006 he observed: “At the same time, the internment of thousands of Iraqis by the Multinational Force and the Iraqi authorities constitutes de facto arbitrary detention. The extent of such practices is not consistent with the provisions of international law governing internment for imperative reasons of security.” In June 2007 he described the increase in the number of detainees and security internees as a pressing human rights concern (S/2007/330, § 31). 41. Similar observations were contained in the reports of the United Nations Assistance Mission for Iraq (UNAMI), which paragraph 7 of Resolution 1546 mandated to promote the protection of human rights in Iraq. In its report on the period July to August 2005, UNAMI expressed concern about the high number of persons detained, observing that “[i]nternees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (September to October 2005), UNAMI repeated this expression of concern and advised that “[t]here is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”. In July-August 2006 UNAMI reported that of the 13,571 detainees in Multinational Force custody, 85 individuals were under United Kingdom custody while the rest were under United States authority. In the report for September to October 2006, UNAMI expressed concern that there had been no reduction in the number of security internees detained by the Multinational Force. In its report for January to March 2007, UNAMI commented: “71. The practice of indefinite internment of detainees in the custody of the MNF [Multinational Force] remains an issue of concern to UNAMI. Of the total of 16,931 persons held at the end of February, an unknown number are classified as security internees, held for prolonged periods effectively without charge or trial. ... The current legal arrangements at the detention facilities do not fulfil the requirement to grant detainees due process. ...” UNAMI returned to this subject in its report for April to June 2007, stating, inter alia : “72. In UNAMI’s view, the administrative review process followed by the MNF through the Combined Review and Release Board (CRRB) requires improvement to meet basic due process requirements. Over time, the procedures in force have resulted in prolonged detention without trial, with many security internees held for several years with minimal access to the evidence against them and without their defence counsel having access to such evidence. While the current review process is based on procedures contained in the Fourth Geneva Convention, UNAMI notes that, irrespective of the legal qualification of the conflict, both in situations of international and internal armed conflict the Geneva Conventions are not of exclusive application to persons deprived of their liberty in connection with the conflict. Alongside common Article 3 to the four Geneva Conventions and customary international law, international human rights law also applies. Accordingly, detainees during an internal armed conflict must be treated in accordance with international human rights law. As such, persons who are deprived of their liberty are entitled to be informed of the reasons for their arrest; to be brought promptly before a judge if held on a criminal charge, and to challenge the lawfulness of their detention.” The report also referred to an exchange of correspondence between the US authorities and UNAMI, on the question whether the International Covenant for the Protection of Civil and Political Rights applied in relation to the Multinational Force’s security internment regime. While the US authorities maintained that it did not, UNAMI concluded: “77. There is no separation between human rights and international humanitarian law in Security Council resolutions adopted under Chapter VII [of the Charter of the United Nations]. In fact, the leading Resolutions on Iraq, such as Resolution 1546 of June 2004, cite in the preamble: ‘Affirming the importance of the rule of law, national reconciliation, respect for human rights including the rights of women, fundamental freedoms, and democracy.’ This arguably applies to all forces operating in Iraq. The letter from the government of Iraq attached to SC res. [Security Council Resolution] 1723 also states that ‘The forces that make up MNF will remain committed to acting consistently with their obligations and rights under international law, including the law of armed conflict’. International law includes human rights law.” | This case concerned the internment of an Iraqi civilian for more than three years (2004-2007) in a detention centre in Basrah, run by British forces. |
735 | Right to an effective remedy (Article 13 of the Convention) | 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. | See above, under “Right to respect for private and family life and home (Article 8 of the Convention)”. |
1,070 | Right to a fair trial (Article 6 of the Convention) | 2. The applicant was born in 1965 and lives in Seville. The applicant was represented by Mr E. Mora Figueroa Rivero, a lawyer practising in Seville. 3. The Government were represented by their Agent, Mr A. Brezmes Martínez de Villarreal, State Attorney. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. Following an inspection of the applicant’s personal income tax returns for the years 1991, 1992 and 1993, the Spanish Tax Management Agency (“the tax authorities”) claimed 180,021.94 euros (EUR) from the applicant in respect of taxes for 1991, EUR 0 for 1992 and EUR 228.90 for 1993. 6. The applicant appealed before the Economic Administrative Court of Andalusia (“the TEARA”) and, by a decision of 27 May 1999, the court allowed the appeal, declaring all tax claims null and void. 7. The tax authorities appealed against the TEARA’s decision before the Central Economic Administrative Court (“the TEAC”). By a decision of 16 November 2001, the TEAC allowed the appeal in part, revoking the annulment of the tax claims in respect of the years 1991 and 1992. 8. The subsequent appeals lodged by the applicant with the domestic courts (the Audiencia Nacional and the Supreme Court) were dismissed by decisions of 26 July 2004 and 6 October 2005 respectively. 9. On 28 March 2005 the tax authorities commenced the enforcement of the debt against the applicant. They issued a tax assessment for EUR 296,031.01, which included, in addition to the main debt, EUR 36,004.39 in respect of a surcharge for late payment and EUR 84,181.79 in respect of default interest. The tax assessment considered other items and previous payments, which is the reason why the total was lower than the sum of the main amount, the surcharge and the interest. The applicant paid these amounts, by means of a seizure of assets by the tax authorities. 10. Once the payment had been made, within the framework of the tax enforcement proceedings, the applicant lodged two separate applications for undue payment against the tax authorities’ assessment, one in respect of the main debt and the other in respect of the surcharge for late payment and default interest. In both applications he relied on section 110 of the Royal Decree 391/1996 (see below) and argued that, after the TEARA’s decision of 27 May 1999 had declared the initial tax claims null and void (see paragraph 6 above), the tax claim for 1991 has lost its effect and the underlying title should have been reactivated before enforcing the debt. Therefore, he considered that the enforcement initiated by the tax authorities on 28 March 2005 had not been based on a valid title. 11. The TEARA initially dismissed the application in respect of the main debt on 25 October 2012. However, on 8 September 2016, the TEAC allowed an appeal by the applicant and declared the payment of the main debt null and void. It agreed with the applicant’s arguments that the initial tax claim for year 1991 had lost its effect after the TEARA’s decision of 27 May 1999 and that the title had never been reactivated. It therefore considered that, in accordance with section 110 of the Royal Decree 391/1996, the enforcement title relied on by the tax authorities had not been valid; in view of this, the payment for the main debt was not due. 12. In parallel proceedings, the TEARA also dismissed the application in respect of the surcharge for late payment and default interest on 25 October 2012, as did the TEAC on 28 January 2016, upon an appeal by the applicant. In these decisions, the TEARA and the TEAC considered that the tax claim for year 1991 had not lost its effect because the applicant had never requested the provisional enforcement of the TEARA’s decision of 27 May 1999; and the TEAC’s decision of 16 November 2001 (see paragraph 7 above) had revoked the annulment of tax claim for year 1991. 13. On 3 May 2016 the applicant lodged an appeal against the TEAC’s decision with the Audiencia Nacional. He submitted his pleadings on 2 February 2017. In them, he alleged, among other things, that the main debt had been annulled by the TEAC’s decision of 8 September 2016 and that, as the surcharge and interest were ancillary to the main debt, they should equally be declared null and void. 14. By a judgment of 19 June 2017, the Audiencia Nacional dismissed the applicant’s appeal in line with the reasoning of the TEARA and the TEAC. Concerning the applicant’s allegation that the surcharge and interest should be declared null and void as a result of the annulment of the main debt, the Audiencia Nacional did not expressly address that issue and stated only that “the allegations made at this time should have been made at the time when the tax was demanded or when the payment was requested, that is, once the tax assessments had become final”. 15. By contrast, on 28 September 2017 the Audiencia Nacional, composed of the same judges but with a different judge acting as rapporteur, passed judgment in the cases of two of the applicant’s siblings, who until that moment had been subject to similar and parallel tax claims by the tax authorities, had followed the same route of appeal and had raised the same legal issues as the applicant. They had lodged their appeals with the Audiencia Nacional on the same day as the applicant, on 3 May 2016. In their cases, the Audiencia Nacional allowed their appeals and declared their respective surcharges and interest to be null and void, on the basis that, as they were ancillary to the main debt, which had been annulled by the TEAC on 8 September 2016, they should equally be annulled. 16. The applicant lodged an appeal on points of law against the Audiencia Nacional judgment with the Supreme Court, which on 18 January 2018 was declared inadmissible owing to the lack of objective interest for the development of case-law. 17. Subsequently, the applicant lodged an application for annulment with the Audiencia Nacional against the judgment of 19 June 2017. He complained that his right to equality before the law had been breached on account of the opposite outcome in his siblings’ cases, and that his right to a fair trial had also been breached on account of the Audiencia Nacional ’s failure to respond to his submission concerning the ancillary nature of the surcharge and interest. 18. On 3 April 2018 the Audiencia Nacional dismissed the application for annulment. Firstly, it stated that, as the judgments in the cases of the applicant’s siblings were given after the judgment in the applicant’s case, the court was not bound by the criteria applied in the siblings’ cases. Secondly, without addressing the particular issue of whether the previous judgment had responded to the applicant’s submission that the surcharge and interest were ancillary to the main debt, it considered that the judgment of 19 June 2017 had duly stated the reasons for dismissing his appeal. 19. The applicant lodged an amparo appeal with the Constitutional Court. In it he relied on Article 24 of the Spanish Constitution, concerning the right to a fair trial. He complained under that article that the Audiencia Nacional, in its judgment of 19 June 2017, had failed to respond to his submission concerning the ancillary nature of the surcharge and interest, and that, in its decision of 3 April 2018, it had again avoided responding to the applicant’s argument that his previous submission remained unresolved. He further relied on Article 14 of the Constitution, concerning the right to equality before the law, under which he invoked the opposite outcome in his siblings’ cases. 20. On 26 September 2018 the Constitutional Court declared the amparo appeal inadmissible owing to the lack of special constitutional significance. | This case concerned administrative proceedings in which the applicant, after seizure of his assets to pay a tax debt of 296,031 euros that included, in addition to the main debt, a surcharge for late payment and default interest, lodged two separate applications for undue payment, one in respect of the main debt and the other in respect of the surcharge and interest. The one in respect of the main debt was allowed, while the one in respect of the surcharge and interest was dismissed. The applicant appealed to the Audiencia Nacional. In the ensuing judgment no reply was given to his allegation that the surcharge and interest should be declared null and void as a result of the annulment of the main debt. By contrast, two months later, the Audiencia Nacional allowed his siblings’ appeals, who had been subjected to similar and parallel tax claims, for that very reason. |
996 | Right to liberty and security (Article 5 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1968 and lives in Bremen. A. Background to the case 6. The applicant is a supporter of, inter alia, Werder Bremen football club, which plays in the German Federal Football League, and attends the club’s football matches regularly. 7. Since 3 September 1996 the applicant has been registered by the Bremen police in a database on persons prepared to use violence in the context of sports events. Between 3 September 1996 and 24 May 2003 eight different incidents in the context of football games in which the applicant was considered to have been involved were listed. The applicant is further registered in a nation-wide database set up in 1994 on persons prepared to use violence in the context of sports events. In that database, persons are entered against whom criminal investigation proceedings were opened for offences in the context of sports events. B. The applicant’s arrest and detention 8. On 10 April 2004 the applicant and some thirty to forty other football fans travelled from Bremen to Frankfurt am Main by train in order to attend the match of Eintracht Frankfurt football club against Werder Bremen football club. 9. The Bremen police had previously informed the Frankfurt am Main police that some thirty to forty persons prepared to use violence in the context of sports events (so-called category C hooligans) planned to travel from Bremen to Frankfurt am Main. 10. On their arrival at Frankfurt am Main central station, the Frankfurt am Main police verified the identity of the members of the Bremen group of football fans. The majority of its members were considered by the police to be football hooligans prepared to use violence. The applicant had further been identified by the Bremen police as a “gang leader” of the Bremen hooligans. The police searched the members of the group and seized a mouth protection device and several pairs of gloves filled with quartz sand found on members of the group other than the applicant. 11. The group, placed under police surveillance, went to a pub. When the group left the pub, the police noted that the applicant was no longer with the group. He was then found by the police in a locked cubicle in the ladies’ bathroom of the pub. He was arrested by the police there at approximately 2.30 p.m. and brought to the police station close to the football stadium; his mobile phone was seized. 12. The applicant was released at approximately 6.30 p.m. on the same day, one hour after the football match had ended. His mobile phone was returned to him on 15 April 2004. C. The proceedings before the domestic authorities and courts 1. The decision of the president of the Frankfurt am Main Police 13. On 13 April 2004 the applicant lodged a complaint with the Frankfurt am Main Police Headquarters. He claimed that his detention on 10 April 2004 and the seizure of his mobile phone had been unlawful. 14. On 17 August 2004 the president of the Frankfurt am Main police dismissed the applicant’s complaint. He found that the applicant’s complaint was inadmissible. The applicant’s detention constituted an administrative act which had become devoid of purpose by the lapse of time, as he had been released prior to lodging his complaint. Likewise, the seizure of his mobile phone had become devoid of purpose as the phone had been returned to him on 15 April 2004. 15. The president of the Frankfurt am Main Police further considered that, in any event, the applicant’s complaint was also ill-founded. Relying on section 32 § 1 no. 2 of the Hessian Public Security and Order Act (see paragraph 33 below) the president found that the applicant’s detention had been necessary in order to prevent the imminent commission of “a criminal or regulatory offence of considerable importance to the general public”. Having regard to the information available to the police, it had to be expected that there would be an altercation between hooligans from Bremen and from Frankfurt am Main in or in the vicinity of Frankfurt, which would entail the commission of criminal or regulatory offences, in the context of the football match. As a rule, the time and place of such altercations were agreed on in advance by the groups of hooligans concerned. The applicant was considered to have attempted to evade police surveillance in order to arrange an altercation between hooligans. He was known to the Bremen police as a “gang leader” of the Bremen hooligans. He had further been observed speaking to a hooligan from Frankfurt am Main in the pub. He had further attempted to hide in the ladies’ bathroom of that pub. In order to prevent altercations between the groups of hooligans being arranged, it was indispensable to detain the applicant so as to separate him from the other members of the group. Furthermore, he could be released just one hour after the end of the football match, when the Frankfurt am Main and Bremen hooligans had left the stadium and its surroundings and were no longer in the applicant’s vicinity. 16. Furthermore, the seizure of the applicant’s mobile phone, based on section 40 no. 4 of the Hessian Public Security and Order Act (see paragraph 36 below), had been lawful. Having regard to the hooligans’ usual practice, it had to be assumed that the applicant would use his mobile phone in order to contact other hooligans from Frankfurt am Main and Bremen in order to agree on the details of the hooligans’ altercation. It had therefore been indispensable to seize the telephone and not to return it immediately after the end of the football match in order to prevent such an altercation. 2. The judgment of the Frankfurt am Main Administrative Court 17. On 6 September 2004 the applicant, who was from then onwards represented by counsel, brought an action against the Land of Hesse in the Frankfurt am Main Administrative Court. He requested the court to declare that his detention on 10 April 2004 and the seizure of his mobile phone had been unlawful. He argued that he was not a “gang leader” of a group of football hooligans, had not planned to arrange an altercation between hooligans or to commit an offence and had therefore not posed a threat which would justify his detention. He had not hidden in the ladies’ bathroom but had gone there because the men’s bathroom had been in a state excluding its use. 18. On 14 June 2005 the Frankfurt am Main Administrative Court, having held a hearing, dismissed the applicant’s action. It found that the applicant’s detention on 10 April 2004 and the seizure of his mobile phone had been lawful and had not breached his rights. 19. The court had heard the applicant and a witness, police officer G., who had been present during the police operation on 10 April 2004. The latter had confirmed that the group from Bremen the police considered to be hooligans prepared to use violence had already consumed a considerable number of alcoholic beverages during the train trip. He had added that during a search of the members of the group in Frankfurt am Main, a mouth protection device and several pairs of gloves filled with quartz sand had been found, which were instruments typically used by hooligans during altercations. During these clashes, offences such as bodily assault and breach of the peace ( Landfriedensbruch – that is, acts of violence against persons or things committed jointly by a crowd of people in a manner which endangers public safety) were committed on a regular basis. He had personally told the group that they would be accompanied to the football stadium by the police and that every person leaving the group would be arrested. He had considered the applicant to be the leader of the group at that time. When entering the ladies’ bathroom, he had come across a man from Frankfurt who had claimed “to have nothing to do with the whole thing”. When he had then found the applicant in a locked cubicle of the ladies’ bathroom, the latter had not given any plausible explanation as to why he was there. When the applicant’s mobile phone had then rung, it had displayed a male name and the addition “Ftm.”. 20. The Administrative Court found that the applicant’s detention for some four hours had been lawful under section 32 § 1 no. 2 of the Hessian Public Security and Order Act. It considered that in the circumstances of the case, it had been reasonable for the police to conclude that the applicant’s detention had been necessary to prevent the commission of considerable offences, such as bodily assault and breach of the peace. The applicant had attempted to evade police surveillance. As the applicant was a hooligan considered by the Bremen police to be a “gang leader” and was registered in a database of the Bremen police as a person prepared to use violence in the context of sports events, that conclusion had been appropriate. Moreover, it was a well-known practice of football hooligans, confirmed by witness G., to set up altercations. It was uncontested that the applicant had been in contact with a person considered by the police to be a hooligan from Frankfurt am Main. 21. The Administrative Court further considered that the seizure of the applicant’s mobile phone had been lawful under section 40 no. 4 of the Hessian Public Security and Order Act. The applicant had had to be prevented from making arrangements for an altercation between hooligans both during his detention and directly after his release. It had not been possible to return the mobile phone to the applicant the next day as he did not live in Frankfurt am Main and had therefore been unable to pick it up on that day. 3. The decision of the Hessian Administrative Court of Appeal 22. On 1 February 2006 the Hessian Administrative Court of Appeal dismissed the applicant’s request to be granted leave to lodge an appeal against the Administrative Court’s judgment. 23. The Administrative Court of Appeal found that there were no serious doubts as to the correctness of the Administrative Court’s judgment. It stressed that a person’s detention, having regard to the serious restriction of the right to liberty it entailed, was only indispensable within the meaning of section 32 § 1 no. 2 of the Hessian Public Security and Order Act if concordant facts in the circumstances of the case warranted the conclusion that it was very likely that a criminal or regulatory offence would be committed in the imminent future by the person detained and that, thereby, the general public’s interest in security would be seriously affected. The Administrative Court had convincingly found that, having regard to the circumstances and the information available, it had been reasonable for the police to assume that an altercation, entailing bodily assaults and breaches of the peace, between hooligans prepared to use violence had been imminent. It had further been reasonable for them to assume that the applicant’s detention had been necessary to prevent such an altercation. 24. The Administrative Court of Appeal noted that at the time of the applicant’s arrest, the Frankfurt am Main police had had at their disposal information transferred to it by the Bremen police that the applicant was member of a group of football fans prepared to use violence (so-called category C hooligans) and was known as a “gang leader” of that group. The transfer of such information was justified under the provisions of the Länder on data transfer between police authorities. In any event, it was the Bremen police transferring the data in question, and not the Frankfurt am Main police receiving that information, which were responsible for the legality of the collection and transfer of the data in question. Therefore, the question whether the Bremen police had lawfully collected and stored data concerning the applicant was not to be determined in the present proceedings, which had been brought against the Land of Hesse, which was represented by the Frankfurt am Main Police Headquarters. Furthermore, the entries on the applicant in the database of the Bremen police had not been known to the Frankfurt am Main police on 10 April 2004 and the latter had not, therefore, based its assumptions concerning the applicant on those entries. 25. The Administrative Court of Appeal further did not share the applicant’s view that, contrary to the Administrative Court’s findings, the police could not reasonably have concluded that the applicant’s detention was necessary to prevent the commission of an offence in the imminent future. The mere fact that the police had seized objects they had considered dangerous from the Bremen group of hooligans and that they had accompanied that group to the football stadium would not have sufficed to exclude an altercation between hooligan groups. Moreover, simply asking the applicant to rejoin the group of Bremen football supporters after he had been found by the police in the ladies’ bathroom would not have been sufficient to prevent the risk of an altercation between hooligans being arranged. Likewise, the police had not been obliged to conclude that separating the applicant from the Bremen group of hooligans would be sufficient to prevent such an altercation. As had been confirmed by the applicant himself, such clashes did not, as a rule, take place in or close to the football stadium, but in different places. 26. The Administrative Court of Appeal further endorsed the Administrative Court’s finding that it had been reasonable for the police to assume that the applicant, having been identified as a group leader prepared to use violence, would be personally involved in the altercation with the Frankfurt hooligans. 27. Finally, the Administrative Court of Appeal also confirmed that the police had been authorised to seize the applicant’s mobile phone under section 40 no. 4 of the Hessian Public Security and Order Act. The applicant’s telephone had been seized in order to prevent him from using it in order to commit an offence. 4. The decision of the Federal Constitutional Court 28. On 1 March 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He complained that his detention had breached his right to liberty. There had not been any reason to assume that he was about to commit a criminal offence. Furthermore, the administrative courts had wrongly refused to examine whether his registration in the database of the Bremen police as a “gang leader” of persons prepared to use violence in the context of sports events was lawful. This registration led to him being prohibited by football clubs to enter football stadiums and to travel restrictions being imposed on him by the police during international football matches. Therefore, the fact that he had never been able to lodge an appeal against this registration had violated his right to liberty. Moreover, in the applicant’s submission, the seizure of his mobile phone had violated the right to secrecy of telecommunications and his property rights under the Basic Law. 29. On 26 February 2008 the Federal Constitutional Court, without giving reasons, declined to consider the applicant’s constitutional complaint (file no. 2 BvR 517/06). | The applicant, a football supporter, complained about his four-hour police custody in order to prevent him from organising and taking part in a violent brawl between football hooligans. |
463 | Responsibility of a State for the consequences of a treaty which it had been involved in adopting | I. the circumstances of the case 7. On 12 April 1994 the applicant applied to the Electoral Registration Officer for Gibraltar to be registered as a voter at the elections to the European Parliament. The Electoral Registration Officer replied on 25 April 1994: “The provisions of Annex II of the EC Act on Direct Elections of 1976 limit the franchise for European parliamentary elections to the United Kingdom [see paragraph 18 below]. This Act was agreed by all member States and has treaty status. This means that Gibraltar will not be included in the franchise for the European parliamentary elections.” | A United Kingdom national resident in Gibraltar alleged a breach of her right to free elections on account of the fact that the United Kingdom had not organised elections to the European Parliament in Gibraltar. |
1,069 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1949 and lives in Tampere, Finland. 9. On 22 May 1998 the Häme Tax Office ( verotoimisto, skattebyrån ) requested the applicant, who ran a car- repair workshop, to submit his observations regarding some alleged errors in his value- added tax (VAT) declarations ( arvonlisävero, mervärdesskatt ) for fiscal years 1994 and 1995. 10. On 9 July 1998 the Tax Office found that there were deficiencies in the applicant ’ s book - keeping in that, for instance, receipts and invoices were inadequate. The Tax Office made a reassessment of the VAT payable basing itself on the applicant ’ s estimated income, which was higher than the income he had declared. It ordered him to pay, inter alia, tax surcharges ( veronkorotus, skatteförhöjning ) amounting to 10% of the reassessed tax liability (the additional tax surcharges levied on the applicant totalled 1,836 Finnish Marks, corresponding to 308.80 euros ). 11. The applicant appealed to the Uusimaa County Administrative Court ( lääninoikeus, länsrätten ) (which later became the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ) ). He requested an oral hearing and that the tax inspector as well as an expert appointed by the applicant be heard as witnesses. On 1 February 2000 the Administrative Court took an interim decision inviting written observations from the tax inspector and after that an expert statement from an expert chosen by the applicant. The tax inspector submitted her statement of 13 February 2000 to the Administrative Court. The statement was further submitted to the applicant for his observations. On 25 April 2000 the applicant submitted his own observations on the tax inspector ’ s statement. The statement of the expert chosen by him was dated and submitted to the court on the same day. 12. On 13 June 2000 the Administrative Court held that an oral hearing was manifestly unnecessary in the matter because both parties had submitted all the necessary information in writing. It also rejected the applicant ’ s claims. 13. On 7 August 2000 the applicant requested leave to appeal, renewing at the same time his request for an oral hearing. On 13 March 2 001 the Supreme Administrative Court refused him leave to appeal. | A tax office imposed tax surcharges on the applicant amounting to 10% of his re-assessed tax liability. The surcharges totalled 1,836 Finnish Marks (about EUR 300) at the time and were based on the fact that his VAT declarations in 1994-1995 had been incomplete. He appealed to the firs-instance administrative court, requesting an oral hearing where a tax inspector and an expert could be heard as witnesses. The administrative court invited the two to submit written observations and eventually found an oral hearing manifestly unnecessary because both parties had submitted all the necessary information in writing. The applicant was denied leave to appeal. Before the Court, he alleged that he had not received a fair hearing in the proceedings in which a tax surcharge was imposed as there had been no oral hearing. |
602 | Recognition, organisation and leadership of churches and religious communities | I. THE CIRCUMSTANCES OF THE CASE A. The applicants 9. Mr Fikri Sali Hasan (“the first applicant”) was Chief Mufti of the Bulgarian Muslims from 1992 until the events complained of. Mr Ismail Ahmed Chaush (“the second applicant”) was formerly a teacher at the Islamic Institute in Sofia. In his submissions to the Court the second applicant stated that from February 1995 he had also worked on a part-time basis as secretary to the Chief Mufti's Office ( Главно мюфтийство ), the national leadership of the Muslim religious organisation, and editor of Musulmanin, its newspaper. The Government disputed these assertions. B. Background to the case 10. At the end of 1989 a process of democratisation commenced in Bulgaria. Soon thereafter some Muslim believers and activists of the Muslim religion in the country sought to replace the leadership of their religious organisation. They considered that Mr Gendzhev, who was the Chief Mufti at that time, and the members of the Supreme Holy Council ( Висш духовен съвет ) had collaborated with the communist regime. The old leadership, with Mr Gendzhev as Chief Mufti of the Bulgarian Muslims, also had supporters. This situation caused divisions and internal conflict within the Muslim community in Bulgaria. 11. Following general elections held in Bulgaria in October 1991 a new government, formed by the Union of Democratic Forces (СДС) and the Movement for Rights and Freedoms (ДПС), took office towards the end of 1991. On 10 February 1992 the Directorate of Religious Denominations ( Дирекция по вероизповеданията ), a governmental agency attached to the Council of Ministers, declared the election of Mr Gendzhev in 1988 as Chief Mufti of the Bulgarian Muslims null and void and proclaimed his removal from that position. On 21 February 1992 the Directorate registered a three ‑ member Interim Holy Council as a temporary governing body of the Muslims' religious organisation, pending the election of a new permanent leadership by a national conference of all Muslims. 12. Following these events Mr Gendzhev, who claimed that he remained Chief Mufti of the Bulgarian Muslims, challenged the decision of 10 February 1992 before the Supreme Court. On 28 April 1992 the Supreme Court rejected his appeal. The court found that the decision of the Directorate of Religious Denominations was not subject to judicial appeal. The ensuing petition for review, submitted by Mr Gendzhev against the Supreme Court's decision, was examined by a five-member Chamber of the Supreme Court. On 7 April 1993 the Chamber dismissed the petition. While confirming the rejection of Mr Gendzhev's appeal, the Chamber also discussed the merits of the appeal. It found, inter alia, that the Directorate's decision to declare Mr Gendzhev's election null and void had been within its competence. In so far as the impugned decision had also proclaimed “the removal” of Mr Gendzhev from his position of Chief Mufti, this had been ultra vires. However, it was unnecessary to annul this part of the Directorate's decision as in any event it had no legal consequences. 13. The National Conference of Muslims, organised by the interim leadership, took place on 19 September 1992. It elected Mr Fikri Sali Hasan (the first applicant) as Chief Mufti of the Bulgarian Muslims and also approved a new Statute of the Religious Organisation of Muslims in Bulgaria ( Устав за духовното устройство и управление на мюсюлманите в България ). On 1 October 1992 the Directorate of Religious Denominations registered the statute and the new leadership in accordance with sections 6 and 16 of the Religious Denominations Act. C. Events of 1994 and early 1995 14. While the leadership dispute between Mr Gendzhev and Mr Hasan continued, the official position of the Directorate of Religious Denominations, throughout 1993 and at least the first half of 1994, remained that the first applicant was the legitimate Chief Mufti of the Bulgarian Muslims. 15. On 29 July 1994 the Directorate of Religious Denominations wrote a letter to Mr Hasan urging him to organise a national conference of all Muslims to solve certain problems arising from irregularities in the election of local religious leaders. The irregularities in question apparently concerned alleged inconsistencies with the internal statute of the Muslim religious organisation, and not breaches of the law. 16. On 2 November 1994 the supporters of Mr Gendzhev held a national conference. The conference proclaimed itself the legitimate representative of Muslim believers, elected an alternative leadership and adopted a statute. Mr Gendzhev was elected President of the Supreme Holy Council. After the conference the newly elected leaders applied to the Directorate of Religious Denominations for registration as the legitimate leadership of the Bulgarian Muslims. 17. On 3 January 1995 the Supreme Holy Council presided over by the first applicant decided to convene a national conference on 28 January 1995. 18. At the end of 1994, parliamentary elections took place in Bulgaria. The Bulgarian Socialist Party (БСП) obtained a majority in Parliament and formed a new government, which took office in January 1995. 19. On 16 January 1995 the Directorate of Religious Denominations wrote a letter to the first applicant in his capacity of Chief Mufti urging him to postpone the conference. The letter stated, inter alia : “As the Directorate of Religious Denominations was concerned with [the] irregularities [as regards the election of local muftis] as early as the middle of 1994, it repeatedly ... urged the rapid resolution of the problems ... Unfortunately no specific measures were undertaken ... As a result the conflicts in the religious community deepened, and discontent among Muslims increased, leading to the holding of an extraordinary national conference on 2 November 1994. This brought to light a new problem, related to the shortcomings of the statute of the Muslim religious community... [The statute] does not clarify the procedure for convening a national conference ... Issues concerning the participants, and the manner in which they are chosen ..., are not regulated. Therefore, for the executive branch of the State it becomes legally impossible to decide whether the national conference is in conformity with the statute [of the Muslim religion] and, accordingly, whether its decisions are valid. These decisions, quite understandably, could be challenged by some of the Muslims in Bulgaria. Any other national conference, except one organised by a joint committee [of the rival leaderships], would raise the same problem. Moreover, the decision of 3 January 1995 of the Supreme Holy Council to hold an extraordinary national conference on 28 January 1995 is signed only by six legitimate members of the Holy Council... [and] ... cannot be regarded as being in conformity with the statute. The Directorate of Religious Denominations cannot disregard the findings of the [Chamber of the] Supreme Court in its decision of 7 [April] 1993. It is mentioned therein that the Directorate had acted ultra vires when removing Mr Gendzhev from his position of Chief Mufti and that the decision of the Directorate of 10 February 1992 could not have legal consequences. Extremely worried as regards the current situation and deeply concerned over the well-being of the Muslims in Bulgaria, the Directorate of Religious Denominations supports the opinion of the Chief Mufti [the first applicant] that it is not advisable to rush ahead with the holding of an extraordinary conference before overcoming the conflicts in the religious community ... Firmly convinced that the disputed questions in the religious community should not be decided by administrative means by the executive branch of the State ... the Directorate appeals to you to show good will and reach a consensus for the holding of a united conference ...” 20. On 27 January 1995 the Supreme Holy Council presided over by Mr Hasan announced that it had postponed the national conference until 6 March 1995. D. Removal of the first applicant from his position of Chief Mufti 21. On 22 February 1995 Mr Shivarov, Deputy Prime Minister of Bulgaria, issued Decree R-12, which reads as follows: “In accordance with Decree KV-15 of 6 February 1995 of the Council of Ministers read in conjunction with section 6 of the Religious Denominations Act, I approve the statute of the Muslim religion in Bulgaria, based in Sofia.” 22. The statute of the Muslim religion in Bulgaria mentioned in the decree was apparently the one adopted at the rival national conference, organised by Mr Gendzhev and held on 2 November 1994. Decree KV-15, referred to in Decree R-12, determined that Deputy Prime Minister Shivarov should be in charge of supervising the activity of the Directorate of Religious Denominations. 23. On 23 February 1995 the Directorate of Religious Denominations of the Council of Ministers issued a decision which stated that, in accordance with sections 6, 9 and 16 of the Religious Denominations Act and Decree R ‑ 12 of the Deputy Prime Minister, it had registered a new leadership of the Bulgarian Muslim community. The leadership thus registered included Mr Gendzhev as President of the Supreme Holy Council and, apparently, those elected at the conference of 2 November 1994. 24. Neither Decree R-12 nor the decision of the Directorate of Religious Denominations gave any reasons or any explanation regarding the procedure followed. The decisions were not formally served on Mr Hasan, who learned about them from the press. 25. On 27 February 1995 the newly registered leadership of the Muslim community accompanied by private security guards entered the premises of the Chief Mufti's Office in Sofia, forcibly evicted the staff working there, and occupied the building. The applicants submit that the police, who arrived after the surprise action, immediately stepped in to protect the new occupants of the building. Following the action of 27 February 1995 the new leadership took over all documents and assets belonging to the religious organisation of Bulgarian Muslims in Sofia and, in the months which followed, in various other towns in the country. The Directorate of Religious Denominations allegedly sent letters to the banks where the Muslim religious organisation had its accounts, informing them of the change of leadership. In the following weeks several municipalities, allegedly upon the instructions of the Directorate, registered new regional muftis. Also, the staff of the Chief Mufti's Office and ten Islamic teachers, the second applicant among them, were allegedly dismissed de facto as they were prevented from continuing their work. 26. On 27 February 1995, immediately after the take-over, the first applicant submitted to the Chief Public Prosecutor's Office ( Главна прокуратура ) a request for assistance, stating that there had been an unlawful mob action and that the persons who had occupied the building of the Chief Mufti's Office were squatters who had to be evicted. By decisions of 8 and 28 March 1995 the prosecuting authorities refused to take action. They found, inter alia, that the new occupants of the building had legal grounds to stay there as they were duly registered by the Directorate of Religious Denominations and represented the religious leadership of the Muslim community in the country. E. The appeal to the Supreme Court against Decree R-12 27. On 23 March 1995, apparently in reply to a request from the first applicant, the Directorate of Religious Denominations sent him, in his capacity as a private person, a letter which stated, inter alia : “The Muslim religious community in Bulgaria ... has, in 1888, 1891, 1919, 1949, 1986, 1992 and 1995, repeatedly changed its statute as concerns its organisational structure ..., but never as regards its religious foundation. Decree R-12 of 22 February 1995 ... sanctions an [organisational] change, which the religious community itself wished to undertake ...” This letter was apparently the first document originating from the competent State bodies which implied clearly that the statute of the Muslim religious community approved by Decree R-12 had replaced the previous statute and that the new registered leadership had replaced the first applicant. 28. On 18 April 1995 the first applicant, acting on behalf of the Chief Mufti's Office which he headed, lodged an appeal against Decree R-12 with the Supreme Court. He stated that, on the face of it, Decree R-12 stipulated nothing more than the registration of a new religious organisation. However, from the decisions and the letter of the Directorate of Religious Denominations which had followed, it had become clear that what had taken place was the replacement of the statute and the leadership of an existing religious denomination. Furthermore, it transpired that the motivation behind this act had been the understanding that the Muslim religion in Bulgaria could have only one leadership and one statute. The State did not have the right to impose such a view on Muslims, multiple religious organisations of one and the same religion being normal in other countries, as in Bulgaria. Therefore the Council of Ministers had acted beyond its powers. The resulting interference in the internal disputes of the Muslim religious community was unlawful. At the oral hearing held by the Supreme Court the first applicant also stated that there had been an unlawful interference with Muslims' religious liberties, as enshrined in the Constitution. 29. The first applicant also submitted that the conference of 2 November 1994 had been organised by people outside the Muslim religious organisation over which he presided. Accordingly, they could register their own religious organisation but could not claim to replace the leadership of another. The second applicant asked the Supreme Court either to declare Decree R-12 null and void as being against the law, or to declare that it constituted the registration of a new religious community, the existing Muslim organisation being unaffected. 30. On 27 July 1995 the Supreme Court dismissed the appeal. The court stated that under the Religious Denominations Act the Council of Ministers enjoyed full discretion in its decision as to whether or not to register the statute of a given religion. The Supreme Court's jurisdiction was therefore limited to an examination of whether the impugned decision had been issued by the competent administrative organ and whether the procedural requirements had been complied with. In that respect Decree R-12 was lawful. As regards the request for interpretation of Decree R-12, it was not open to the Supreme Court, in the framework of those particular proceedings, to state its opinion as to whether it had the effect of creating a new legal person, or introducing changes, and whether after this decision there existed two parallel Muslim religious organisations. F. The national conference of 6 March 1995 and the appeal to the Supreme Court against the Council of Ministers' refusal to register its decisions 31. The national conference of Muslims in Bulgaria organised by Mr Hasan took place as planned on 6 March 1995. The minutes of the conference establish that it was attended by 1,553 persons, of whom 1,188 were official delegates with voting rights. These were representatives of eleven local chapters and of the central leadership. The conference adopted some amendments of the statute of the Muslim community and elected its leadership. The first applicant was re-elected Chief Mufti. 32. On 5 June 1995 the first applicant, acting as Chief Mufti, submitted a petition to the Council of Ministers requesting the registration of the new statute and leadership of Muslims in Bulgaria, as adopted by the conference of 6 March 1995. On 6 October 1995 he repeated the request. However, there was no response from the Council of Ministers. 33. On an unspecified date the first applicant appealed to the Supreme Court against the tacit refusal of the Council of Ministers to register the decisions of the March 1995 conference. 34. On 14 October 1996 the Supreme Court delivered its judgment. It noted that in 1992 the Chief Mufti's Office as represented by Mr Hasan had been duly registered as a religious denomination under section 6 of the Religious Denominations Act and had thus obtained legal personality of which it had not been subsequently deprived. Therefore the Council of Ministers was under an obligation, pursuant to sections 6 and 16 of the Act, to examine a request for registration of a new statute or of changes in the leadership in the existing religious denomination. Accordingly, the Supreme Court ruled that the tacit refusal of the Council of Ministers had been unlawful and ordered the transmission of the file to the Council of Ministers, which was required to examine it. 35. On 19 November 1996 Deputy Prime Minister Shivarov refused to register the 1995 statute and leadership of the Chief Mufti's Office as represented by Mr Hasan. He sent him a letter stating, inter alia, that the Council of Ministers had already registered a leadership of the Muslim community in Bulgaria, which was that elected by the November 1994 conference with Mr Gendzhev as President of the Supreme Holy Council. The Deputy Prime Minister concluded that the first applicant's request “[could not] be granted as it [was] clearly contrary to the provisions of the Religious Denominations Act”. 36. On 5 December 1996 the first applicant, acting as Chief Mufti, appealed to the Supreme Court against the refusal of the Deputy Prime Minister. 37. On 13 March 1997 the Supreme Court quashed that refusal on the ground that it was unlawful and contrary to Article 13 of the Constitution. The refusal constituted “an unlawful administrative intervention into the internal organisation of [a] religious community”. The Supreme Court again ordered the transmission of the file to the Council of Ministers for registration. 38. Despite these Supreme Court judgments the Council of Ministers did not grant registration to the religious leadership headed by Mr Hasan. G. The 1997 unification conference and subsequent events 39. In February 1997 the government of the Bulgarian Socialist Party stepped down and an interim cabinet was appointed. At the general elections which followed in April 1997 the Union of Democratic Forces obtained a majority in Parliament and formed a new government. 40. On 24 March 1997 the first applicant again requested the Council of Ministers to register the 1995 statute and leadership. There followed informal contacts between the Muslim leadership of Mr Hasan and representatives of the government. The applicants were allegedly told that the government would only agree to register a new leadership of the Muslims if it was elected at a unification conference. 41. The Directorate of Religious Denominations urged the two rival leaderships of Mr Hasan and of Mr Gendzhev to negotiate a solution. On 12 September 1997 the leadership headed by Mr Hasan decided to accept the holding of a unification conference under certain conditions. A five-member contact group was appointed to hold negotiations. On 30 September 1997 representatives of the two rival leaderships signed an agreement to convene a national conference of all Muslim believers on 23 October 1997. The agreement, which was also signed by Deputy Prime Minister Metodiev and the Director of Religious Denominations, provided, inter alia, that the parties would not obstruct the unification process, failing which the Directorate would take appropriate administrative measures. In addition, the leadership of Mr Gendzhev undertook not to dispose of any Muslim property or assets before the conference. 42. The Directorate of Religious Denominations took an active part in organising the national conference. The mayors in many localities distributed to the local chapters forms bearing the seal of the Directorate. These forms were filled out at the meetings of the local chapters which elected delegates to the national conference and were certified by the mayors' signatures. 43. On 23 October 1997, 1,384 delegates attended the conference. Only delegates whose election had been certified by the mayors were allowed to participate. The conference adopted a new statute of the Muslim denomination in Bulgaria and elected a new leadership comprising members of the leadership of Mr Hasan and others. Mr Hasan apparently attended the conference and approved of the new leadership. Six leaders of the group led by him were elected to the new Supreme Holy Council. Mr Hasan was not among them. On 28 October 1997 the government registered the newly elected leadership. 44. Although the religious community which accepted Mr Gendzhev's authority was involved in the unification process, Mr Gendzhev himself and some of his supporters did not sign the agreement of 30 September 1997 and did not attend the conference, considering that it was manipulated by the State. The conference voted a resolution authorising the new leadership to conduct an audit and seek the prosecution of Mr Gendzhev for alleged unlawful transactions. 45. Mr Gendzhev, who claimed that he remained the Chief Mufti, appealed to the Supreme Administrative Court ( Върховен административен съд ) against the government's decision to register the new leadership. By a judgment of 16 July 1998 the Supreme Administrative Court rejected the appeal as being inadmissible. It found that the Chief Mufti's Office of Mr Gendzhev had no locus standi to lodge an appeal as it had never been validly registered. Decree R-12 of 22 February 1995 had been signed by Deputy Prime Minister Shivarov, who had not been duly authorised by the Council of Ministers. Decree KV-15 did not contain an express authorisation for the Deputy Prime Minister to approve the statutes of religious denominations. As a result the Chief Mufti's Office of Mr Gendzhev had never legally existed and all its acts between 1995 and 1997 were null and void. | The first applicant was the Chief Mufti of the Bulgarian Muslim community as from 1992. The second was a member of the community. Following a dispute in the community in 1994-95 as to who should be its leader, the first applicant was effectively replaced by the Bulgarian Government with another candidate who had previously held the post. The applicants complained in particular that there had been an unlawful and arbitrary interference with their religious liberties and the right of the believers and the religious community to govern their own affairs and to choose their leadership. |
284 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 8. At approximately 4.10 a.m. on 23 October 1990 a large explosion occurred at a British Army/Royal Ulster Constabulary checkpoint in County Derry. Five British soldiers and one civilian were killed and a number of other British army personnel were seriously injured. 9. Approximately an hour and a half later, Irish police officers on surveillance duty noted a light in a house approximately four miles from the scene of the explosion. At approximately 6.05 a.m. on 24 October 1990 a warrant was obtained to search the house. At or around 7 a.m. that morning the police entered the house and found an assortment of gloves (rubber and knitted), balaclavas, caps and other clothing. The seven men in the house, including the owner and the applicants, were arrested and detained by the police under section 30 of the Offences against the State Act 1939 (“the 1939 Act”). As later noted by the High Court (see paragraph 15 below), it was suspected that the bombing had been carried out by the Irish Republican Army (an unlawful paramilitary organisation known as the IRA) and the applicants were, in turn, suspected by the police of membership of that organisation and of involvement in the bombing. 10. Both applicants were cautioned by police officers in the usual terms, namely that they were not required to say anything unless they wished to do so and they were also informed that anything they did say would be taken down in writing and might be given in evidence against them. Mr Heaney was then questioned about the bombing and about his presence in the house where he was arrested. He refused to answer the questions put to him. Police officers then read section 52 of the 1939 Act to him and he was requested pursuant to that section to give a full account of his movements and actions between 6 p.m. on 23 October and 6.55 a.m. on 24 October 1990. He refused to answer any questions. Mr McGuinness was also questioned about the explosion and about his presence in the house where he was arrested. He refused to answer those questions. He was then requested to account for his movements between 1 a.m. and 7.15 a.m. on 24 October 1990. He refused to answer. Police officers then read section 52 of the 1939 Act to him and he was handed a copy of the section and asked to read it. He continued not to answer questions put to him. 11. On 25 October 1990 both applicants were brought to the Special Criminal Court in Dublin and charged with the offence of membership of an unlawful organisation (contrary to section 21 of the 1939 Act) and of failing to account for their movements (contrary to section 52 of the 1939 Act). 12. On 19 April 1991 the applicants' trial in the Special Criminal Court took place. On 26 June 1991 the applicants were acquitted of the charge of membership of an unlawful organisation but each was convicted of failing to provide an account of their movements during a specified period contrary to section 52 of the 1939 Act. The court rejected their arguments that section 52 must be read as including a right to refuse to provide such information on reasonable grounds and about the confusion caused by police officers giving the usual caution about the right to remain silent and then making a request for information under section 52 of the 1939 Act. Both applicants were sentenced to six months' imprisonment. Their sentences commenced on 26 June 1991. They were released on 10 November 1991. 13. The applicants then appealed against their conviction and sentence under section 52 to the Court of Criminal Appeal. As regards their conviction, they submitted that the Special Criminal Court had erred in finding that the applicants were not confused as a result of the caution about their right to remain silent and the conflicting request for information under section 52 by the same officers. They argued that section 52 should have been read as including the possibility of a refusal to give information based on reasonable excuse. As to their sentence, they argued that the confusion caused by the caution and request for information should have been a mitigating factor; that there was no evidence that they warranted the maximum sentence; and that the court failed to take into account the time the applicants had spent in custody prior to their trial. 14. On 3 May 1992 the applicants took proceedings in the High Court challenging the constitutionality of section 52 of the 1939 Act. The proceedings pending before the Court of Criminal Appeal were consequently adjourned. 15. By a judgment dated 24 June 1994, the High Court rejected their application. It based the applicants' right not to answer questions as regards their movements on Article 38 of the Constitution rather than on Article 40, noting that their case related to suspects in custody and not to accused persons on trial. However, it was considered that section 52 constituted a proportionate interference with the applicants' right to silence, the objective being to assist police investigations into serious crimes of a subversive nature involving the security of the State. In addition, the restrictions were not considered arbitrary or irrational. The High Court also considered that the restriction did not excessively impair the right to silence given the objective pursued by section 52 and the other legal protections applicable to persons in custody under section 30 of the 1939 Act, which protections were afforded to minimise the risk of an accused wrongfully confessing to a crime and to safeguard against the possible abuse of the powers provided by section 52 of the 1939 Act. Those protections were listed by the High Court: the requirement that a police officer must have a bona fide suspicion prior to arrest; the obligation to inform the suspect of the offences under the 1939 Act and/or of the scheduled offences of which he is suspected; the right to legal assistance when reasonably requested; the right to medical assistance; the right of access to a court; the right to remain silent and to be told of that right; the obligations to provide appropriate cautions to detainees and to abstain from cross-examining a person in detention under section 30 of the 1939 Act and from unfair and oppressive questioning of such detainees; and the conditions attaching to any extension of the length of detention under section 30 of the 1939 Act. 16. By a judgment dated 23 July 1996 the Supreme Court rejected the applicants' appeal, finding that section 52 of the 1939 Act was not inconsistent with the Constitution. It was noted that section 52 of the 1939 Act was silent on the use which could be made of statements provided pursuant to requests made under section 52. While the Court of Criminal Appeal had suggested in a previous case ( The People (Director of Public Prosecutions) v. McGowan [1979] Irish Reports 45) that information lawfully obtained under section 52 might be later used in evidence, the Supreme Court expressly reserved its position as to whether that view was correct or not. The Supreme Court considered that the right to silence was a corollary to freedom of expression guaranteed by Article 40 of the Constitution and that the relevant assessment was to consider the proportionality of the restriction on the right to silence in view of the public order exception to Article 40 of the Constitution. It noted that the 1939 Act was aimed at actions and conduct calculated to undermine public order and the authority of the State and that the proclamation made pursuant to section 35 of the 1939 Act remained in force. As to whether section 52 restricted the right to silence more than was necessary in light of the disorder against which the State was attempting to protect the public, the court noted that an innocent person had nothing to fear from giving an account of his or her movements even though such a person may wish, nevertheless, to take a stand on grounds of principle and to assert his or her constitutional rights. However, it considered that the entitlement of citizens to take such a stand must yield to the right of the State to protect itself. The entitlement of those with something relevant to disclose concerning the commission of a crime to remain silent must be regarded as of an even lesser order. The Supreme Court concluded that the restriction in section 52 was proportionate to the State's entitlement to protect itself. 17. The applicants' appeal to the Court of Criminal Appeal in relation to their conviction under section 52 of the 1939 Act has been adjourned generally pending the outcome of the present application. | The two applicants were arrested on suspicion of serious terrorist offences. After having been cautioned by police officers that they had the right to remain silent, they were requested under section 52 of the Offences Against the State Act 1939 to give details about their movements at the time of the relevant offences. The applicants complained that section 52 of the 1939 Act violated their rights to silence and against self-incrimination and inverted the presumption of innocence. |
908 | Tribunal established by law | I. THE CIRCUMSTANCES OF THE CASE A. The applicants Application no. 39343/98 12. Mr A.A. Kleyn was born in 1941 and lives in Asperen. He is a managing director of the limited liability company ( besloten vennootschap met beperkte aansprakelijkheid ) Kleijn Financierings - en Leasemaatschappij B.V. and of the limited liability company Exploitatiemaatschappij De Zeiving B.V. He is also part- owner of the restaurant “De Goudreinet ”. Application no. 39651/98 13. Mettler Toledo B.V. is a limited liability company. Its premises are located in Tiel. Van Helden Reclame-Artikelen B.V. is a limited liability company. Its premises are located in Tiel. Its managing directors, Mr A. van Helden and Mrs C.H. van Helden-Schimmel, who were both born in 1946, live next to the company ’ s business premises. Grasshopper Reclame is a registered partnership ( vennootschap onder firma ) established under Netherlands law. Its premises are located in Tiel. Its managing directors, Mr A. Hougee and Mrs O.L. Hougee -van Frankfoort, who were born in 1947 and 1948 respectively, live above the company ’ s business premises. M.C. Gerritse B.V. is a limited liability company. Its premises are located in Tiel. Texshop B.V. is a limited liability company. Its premises are located in Tiel. Restaurant De Betuwe B.V. is a limited liability company. It operates a restaurant in Tiel. Maasglas B.V. is a limited liability company. Its premises are located in Tiel. Mr C.M. van Burk, who was born in 1953, operates a petrol station on the A15 motorway, near Meteren. Kuwait Petroleum ( Nederland ) B.V. is a limited liability company established in Rotterdam. It owns the petrol station operated by Mr van Burk. Sterk Technisch Adviesbureau B.V. is a limited liability company. Its premises are located in Spijk. Kleijn Financierings - en Leasemaatschappij B.V. and Exploitatiemaatschappij De Zeiving B.V. are both limited liability companies and – together with Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn, who were born in 1936, 1970 and 1978 respectively – are joint owners of a number of plots of land along the A15 motorway and part - owners of the restaurant “De Goudreinet ” that is located on one of the plots. Application no. 43147/98 14. Mr M.A.J.E. Raymakers and Mrs P.W.N. Raymakers-Spreeuwenberg, who were born in 1956 and 1959 respectively, live in Kerk - Avezaath. Application no. 46664/99 15. Mr A.J.Th. Berndsen and Mrs B.A.G. Berndsen-Wezendonk were born in 1950 and 1952 respectively and live in Groessen. Mr P. Bunschoten was born in 1955 and lives in Herveld. Mr W.F. van Duyn was born in 1962 and lives in IJzendoorn. Mr C.J. Hanhart was born in 1938 and lives in Tiel. Mr J.H. Kardol was born in 1938 and lives in Meteren. Mr C. de Kreij was born in 1948 and lives in Giessenburg. Mr G.J. van Lent was born in 1944 and lives in Ochten. Mrs G. van Lent-de Kroon was born in 1910 and lives in Echteld. Mr S.J.B.A. Pompen was born in 1963 and lives in Tiel. Takel - en Bergingsbedrijf Hanhart is a partnership ( maatschap ) of which Mr C.J. Hanhart and Mr S.J.B.A. Pompen are the partners. Its premises are located in Tiel. Ms C.M.M. Wennekes was born in 1949 and lives in Herveld. Mr M. Witvliet was born in 1944 and lives in Kesteren. B. Factual background 16. The territory of the Netherlands includes the estuaries of the Rhine, Maas and Schelde, all of which flow into the North Sea at or near the town of Rotterdam. These rivers have long been used for the transport of merchandise to and from a large part of the north-western and central European hinterland, and in particular the vast industrial area situated along the River Ruhr in Germany. Over the centuries this geographical situation has allowed the Netherlands to become one of Europe ’ s major transport hubs, with Rotterdam harbour and Schiphol Airport, near Amsterdam, developing into important transit points for goods. 17. In recent years worldwide economic growth, the opening of the borders between the European Union countries and the opening up to foreign trade of central and east European countries have led to an increase in the quantity of merchandise transported through the Netherlands and, consequently, in the volume of traffic. 18. Since the 1980s the volume of transport by inland waterways, rail and pipelines has largely remained stable. It is essentially road transport which has absorbed the increase. This is due to various factors, such as the greater availability and convenience of roads as compared to railways and waterways and the increased tendency of industry to have raw and unfinished materials delivered as and when needed instead of keeping stocks. 19. In the early 1990s the government decided on a policy of maintaining and further improving the competitiveness of Rotterdam harbour as Europe ’ s main entry and exit port, as compared to its major rivals, Hamburg, Antwerp, Le Havre, Marseilles and London. At the same time it was considered important to prevent, and if possible reduce, congestion of the roads and damage to the environment. C. The Transport Infrastructure Planning Bill ( Tracéwet ) and the advisory opinions of the Council of State ( Raad van State ) 20. On 1 July 1991, in accordance with section 15 of the Council of State Act ( Wet op de Raad van State ) and upon a proposal of the Minister for Transport and Communications ( Verkeer en Waterstaat ) and the Minister for Housing, Planning and Environment Management ( Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer ), the Queen transmitted the Transport Infrastructure Planning Bill ( Tracéwet ) to the Council of State for an advisory opinion. 21. The Transport Infrastructure Planning Bill was intended to provide a legislative framework for the supra - regional planning of new major transport infrastructure (roads, railways, canals) and major modifications to existing transport infrastructure with a view to simplifying procedures for securing the cooperation of the provincial, regional and local authorities whose territories might be affected. An additional effect was intended to be the concentration of legal remedies in such a way that only one single appeal could be lodged with the Council of State against a decision of central government and all related decisions of subordinate authorities, obviating the need for a plurality of appeals before both the ordinary courts and the Council of State against decisions and plans of local authorities. 22. The Council of State transmitted its advisory opinion to the government on 9 December 1991. Its opening paragraph reads: “The Council of State fully acknowledges the problems that the signatories to the Transport Infrastructure Planning Bill wish to resolve. It often concerns large, technically complex and expensive infrastructure projects. These must not only be balanced against diverse and weighty interests relating to traffic and transport, road safety, town and country planning and the environment, but in addition it is desirable to have the widest possible public support for these projects. The current decision-making procedure – entailing a non-statutory routing determination following which final decisions are only made in accordance with the town and country planning procedure, against which an appeal may be lodged with a judge – can take much time. Furthermore, where a number of provincial and municipal bodies are involved, the decision-making process is diffused over several regional and local zoning plans. The Council of State therefore shares the government ’ s concern about the outlined problems. It will examine hereafter whether, in its opinion, the proposals made will in practice sufficiently resolve the problems and whether the concomitant disadvantages are acceptable.” 23. In its opinion the Council of State noted, among other things, the absence of any binding time-limits for the administrative authorities. It expressed doubts as to whether the procedure under the new bill, if enacted, would be any shorter than the aggregate of separate procedures necessary hitherto. It also considered that the new bill created uncertainty at the lower levels of government (the provinces, the regional surface waterboards ( waterschappen ) and the municipalities) by bypassing the planning structures of those lower bodies; in addition, insufficient weight was given to the justifiable interests of individuals. It found that the considerable limitation of legal protection constituted an important objection to the new bill. 24. Point 8 of the advisory opinion reads: “Having reached the end of the examination of the legal protection in the framework of this bill, from which it can be seen that the Council of State has serious objections to the removal of a routing determination [ tracévaststelling ] from general town and country planning considerations, it nevertheless wishes to point out that, when the Council of State leaves aside here the problem dealt with under point 2 (length of the decision-making process under the bill), those serious objections would be less weighty if the bill only related to routing determinations of such exceptional (supra ‑ )national importance that it must be clear to anyone that in the case in question the provincial, regional and local interests should yield to them. In that case, the routing plans [ tracés ] referred to in section 24b should be explicitly mentioned in the bill. It would be preferable to reconsider the bill in this sense.” 25. The Council of State made a number of suggestions for improving the drafting of the bill before it was transmitted to Parliament. Its final conclusion reads: “The Council of State advises you not to send this bill to the Lower House of the States General until the above observations have been taken into account.” 26. In their reply of 28 January 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management noted – as regards the doubts expressed by the Council of State as to whether the new procedure would be appreciably shorter than the former one – among other things that it might take a very long time to obtain the cooperation of the local authorities. It was also stated that the local authorities were involved in all stages of the procedure, being informed and consulted as the need arose; if it was necessary to compel their cooperation, this was done at the final stage, that of the routing decision. Legal protection of the justified interests of individuals was sufficiently guaranteed in the form of a single appeal, on legal grounds, against a routing decision. 27. As to the remarks made under point 8 of the advisory opinion of the Council of State, the ministerial response reads as follows: “With the approval of the Council of Ministers (decision of 24 January 1992 ), we decided to include in the bill a separate regulation for large projects of national importance. In line with this, the transitory arrangement referred to in section 24b will be concentrated on the high-speed railway and the ‘ Betuweroute ’ [railway]. The original section 24b was included exclusively in view of these projects and can now be dropped, as a provision will be devoted to these projects. Since, with the inclusion of the special procedure for large projects and the above-indicated transitional arrangement, the bill will be further amended, we find it desirable to consult the Council of State on this. The amendments to the bill will therefore be submitted for advice to the Council of State in the form of a ministerial memorandum of amendments.” 28. The Minister for Transport and Communications made a number of changes to the bill in the light of the Council of State ’ s criticism. The amendments were submitted to the Council of State for advice on 6 February 1992. 29. In its advisory opinion of 8 May 1992, the Council of State considered, inter alia : “... it desirable to indicate in section 24g that the notions ‘ high-speed railway ’ and ‘ Betuweroute ’ railway relate to specific [railway] connections between specifically named places.” 30. The ministerial reply of 19 May 1992 to this recommendation states: “This advice has been followed. It is now indicated in section 24g that the high-speed railway relates to the Amsterdam-Rotterdam-Belgian border route, and the ‘ Betuweroute ’ [railway] to the Rotterdam- Zevenaar route.” 31. The government then submitted the bill to the Lower House ( Tweede Kamer ) of Parliament, together with the Council of State ’ s advisory opinion and the ministers ’ comments. The Transport Infrastructure Planning Act eventually entered into force on 1 January 1994. It contains no specific mention of the high-speed railway or the Betuweroute railway, but does provide for a special procedure for projects of national importance. D. The planning process of the Betuweroute railway 1. The preparatory stages 32. An existing railway through the Betuwe region (the area circumscribed by the rivers Rhine, Lek and Waal ) – known as the “ Betuwe line” ( Betuwelijn ) – links the city of Rotterdam to the town of Elst. It was, and still is, mainly used for passenger traffic and is operated at a loss. As early as 1985 a government committee suggested converting it for use solely for the transport of goods, extending it as far as the town of Zevenaar and connecting it to the German railway system. A study commissioned by the Netherlands Railways ( Nederlandse Spoorwegen – “ the NS”) and published in 1991 concluded that the environmental impact would be unacceptable and that the capacity of such a railway line would be insufficient. 33. This led the government to reject that idea. Instead, the government decided to investigate the possibility of building a new railway through the Betuwe, to be known as the “ Betuweroute ”, along the A15 motorway. The NS was required to prepare an environmental impact report ( milieu- effectrapportage ). 2. Outline Planning Decision – Part 1 34. On 16 April 1992 the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management together presented the first draft of the outline planning decision ( Planologische Kernbeslissing ) within the meaning of section 2a of the Town and Country Planning Act ( Wet op de Ruimtelijke Ordening ), which later became known as “ Outline Planning Decision – Part 1 ”. The environmental impact report prepared by the NS was appended to this document. Pursuant to the then applicable section 2a of the Town and Country Planning Act, it was laid open for public inspection, notice of its publication being given through the Netherlands Government Gazette ( Staatscourant ) and the media. Anyone interested could then make his or her views known. The time-limit for doing so was 27 July 1992. More than 1,800 reactions were received. 35. On 31 August 1992 the Netherlands Minister for Transport and Communications signed an agreement with his German counterpart, the Federal Minister for Transport, for increased cooperation in the matter of cross-border railway communication. The agreement provided – subject to the conclusion of procedures prescribed by national law – for, inter alia, the building of a new railway from Rotterdam to the German border via Zevenaar. There were to be two border crossings, one at Oldenzaal /Bad Bentheim and the other at Venlo/Kaldenkirchen. The agreement also provided for corresponding measures to be taken on the German side and for a time frame. 3. Outline Planning Decision – Part 2 36. On 18 April 1993 the government published a document entitled “ Reacties op de Ontwerp Planologische Kernbeslissing Betuweroute ” (Reactions to the Betuweroute Outline Planning Decision). It contained an overview of the reactions to Outline Planning Decision – Part 1 sent in by individuals and the results of further consultations and discussions with local government bodies, that is provinces, municipalities and regional surface waterboards. Advice obtained from the Netherlands-German Planning Board ( Nederlands-Duitse Commissie voor de Ruimtelijke Ordening ), the Environmental Impact Reports Board ( Commissie milieu- effectrapportage ), the Planning Advisory Board ( Raad van Advies voor de Ruimtelijke Ordening ) and the Traffic Infrastructure Consultation Body ( Overlegorgaan Verkeersinfrastructuur ) was also included in this document, which became known as Outline Planning Decision – Part 2. 4. Outline Planning Decision – Parts 3 and 3A 37. On 18 May 1993 the government published their views on the Betuweroute project and transmitted it to the Lower House of Parliament for approval. This document became known as Outline Planning Decision – Part 3. After deliberations, the Lower House of Parliament sent Outline Planning Decision – Part 3 back to the government with its comments. 38. The government made certain modifications. The resulting document, which became known as Outline Planning Decision – Part 3A, was submitted to the Lower House of Parliament on 14 December 1993 for approval. 5. Outline Planning Decision – Part 4 39. Outline Planning Decision – Part 3A was approved by the Lower House of Parliament on 22 December 1993 and, on 12 April 1994, by the Upper House ( Eerste Kamer ) of Parliament. It became known thereafter as Outline Planning Decision – Part 4 and came into force after its publication in the Netherlands Government Gazette on 27 May 1994. 40. Outline Planning Decision – Part 4 contained an explanatory memorandum setting out the need for the Betuweroute, as perceived by the government, and giving reasons for the choices made. It was stated that Rotterdam, the Netherlands ’ main port, and Schiphol Airport, now served most of the European continent and that the increase in the volume of transport could not be absorbed by inland waterway traffic alone. Moreover, much of the European hinterland could not be reached by water. Road traffic could not be the only alternative, as it was relatively expensive, uneconomical over long distances and environmentally unfriendly. Furthermore, in much of eastern Europe the railway infrastructure was better developed and in a better state of repair than the roads. 41. Other European countries, including Germany, France and the Alpine countries, were investing heavily in railways in order to relieve the roads. Germany had undertaken to connect its railway system to the Betuweroute, and would give effect to this undertaking as soon as the decision to build the Betuweroute was taken. The transport policies developed by the European Economic Community also provided for the development of new railways. 42. The explanatory memorandum contained summaries of studies – additional to that undertaken by the NS in 1991 – that had been commissioned by the government, namely a study on the macro-economic and social effects by Knight Wendling and a micro-economic analysis by McKinsey. Both studies concluded that the Betuweroute would be profitable. They were scrutinised by the Central Planning Office ( Centraal Planbureau ). The results of this appraisal were also rendered in summary form. The government considered that although the conclusions of the Central Planning Office were rather more guarded, they too indicated that the project was viable. 43. Other alternatives were taken into consideration. These included increasing the capacity of an existing railway running from Rotterdam through the southern province of North Brabant to Venlo and from there into Germany ( the “ Brabantroute ”), used mainly for passenger traffic, and making it more suitable for the transport of goods. This alternative was rejected on the ground that it would require building two extra tracks. Moreover, the urban density along the Brabant route being three to four times as high as that along the projected Betuweroute, this would cause severe and unacceptable problems. 44. Alternatives not involving railways, which had been suggested after Outline Planning Decision – Part 1 had been laid open for public inspection, were discarded in view of the need to connect to the existing railway infrastructure in the rest of Europe. The importance of inland navigation was nonetheless recognised, and it was stated that in both the Netherlands and Germany inland port facilities were undergoing further development. 45. Alternative methods of constructing the railway had been suggested in the wake of Outline Planning Decision – Part 1. Many of those who had stated their views on the matter had expressed a preference for an underground tunnel or for open tracks sunk below ground level. These were considered, but rejected as the cost would be prohibitive. A traditional construction was chosen consisting of rail tracks resting on a sand base and located mostly at ground level, a raised or lowered track being envisaged only for locations where such was called for by considerations of safety or environmental impact. Similarly, conventional rather than innovative technology was chosen. 46. Outline Planning Decision – Part 4 provided for a twin-track railway. Its location was fixed as far as possible within a horizontal band of 100 m. Within this band limited adjustment to local conditions would be possible, it being understood that any additional features such as drainage ditches or other traffic infrastructure might have to be located outside it. The actual route was set out in sketch plans, with reasons being given for the choices made and for the rejection of alternatives. 47. Consideration was given to possible harmful effects. Thus, although under the legislation in force (Article 7 of the Railway Noise Ordinance – Besluit geluidhinder spoorwegen ) the maximum permissible noise level was 60 decibel ampere ( dBA ) on the outside walls of residential buildings, a “preferential noise level” of 57 dBA would be applied in anticipation of stricter standards which were expected to come into force in 2000. Where it appeared in practice that this could not be achieved, noise levels would be reduced by means of screens. Exceptionally, noise levels of up to 70 dBA might be tolerated at specific locations, but even there they were not to exceed 37 dBA inside residential buildings with the windows closed and ventilation apertures open. Although there might be an accumulation of noise from the A15 motorway and the Betuweroute railway, it was considered that the railway would contribute less noise than the louder motorway traffic, so that it would be possible, by screening and other measures, to reduce the combined noise levels to 60 dBA. 48. Some 150 residential buildings were found to be located within 50 m of the projected railway track. It was estimated that approximately one quarter of these were so close to the projected track that noise levels would compel the termination of their residential function. Studies had also been conducted regarding the vibration likely to be caused and the standards to be applied on this point. Further studies would be undertaken with a view to taking constructive measures aimed at reducing vibration levels. 49. The danger that might be result from the operation of the Betuweroute railway was also considered, although not in detail. It was intended to build the railway so that the “individual risk” would be no greater than 10-6 near residential areas. The “group risks” would be kept “as low as reasonably achievable”. Specific measures would be set out in the routing decision. 50. There had been an audit of the costs of the project as proposed by the government, which, as was estimated at 1993 cost levels, would amount to a total of 7,138 ,000,000 Netherlands guilders (NLG). Of this sum a portion of NLG 1,975 ,000,000 would be paid out of the State budget. The remaining NLG 5,163 ,000,000 would be raised from other sources, such as the financial markets, windfall profits from the sale of natural gas and funds supplied by the EEC. The total figure included a sum of NLG 750 ,000,000 occasioned by changes imposed by the Lower House of Parliament and NLG 375 ,000,000 required to meet objections and special requests made by individuals and local authorities. 51. A new government took office on 22 August 1994, which in pursuance of agreements reached between the coalition parties reconsidered the Betuweroute plan in its entirety. After obtaining the views of a parliamentary committee ( the “ Hermans Committee”), the new government decided that the plan should go ahead. Its views were made public in a letter sent by the Minister for Transport and Communications and the Minister for Housing, Planning and Environment Management to the Lower House of Parliament on 21 April 1995. On 29 June 1995 the Lower House of Parliament endorsed the government ’ s views. 6. The Betuweroute Routing Decision ( Tracébesluit ) 52. In accordance with the procedure for projects of national importance under the Transport Infrastructure Planning Act which had come into force on 1 January 1994, a preliminary draft of the routing decision – containing the determination of the exact routing of the planned railway – was laid open for public inspection in June 1994, together with an addition to the environmental impact report and a survey of expected noise levels. Some 5,500 reactions were received from individuals, non ‑ governmental organisations and local - government bodies. These led to modifications, which were incorporated into the draft routing decision. 53. The draft routing decision was published on 4 March 1996 and laid open for public inspection until 29 April 1996. More than 600 reactions were received from individuals and local - government bodies. Changes were considered, and eventually incorporated into the final routing decision, in so far as they did not affect the projected route, did not require additional expenditure and did not affect the interests of other parties. Changes made included, for certain locations, noise-reduction measures in addition to those foreseen in Outline Planning Decision – Part 4. 54. The routing decision was finalised on 26 November 1996 by the Minister for Transport and Communications in agreement with the Minister for Housing, Planning and Environment Management. It covered most of the projected track of the new Betuweroute railway, with the exception of a number of locations – not concerned by the present case – for which further planning was required. 55. The routing decision comprises twenty-four Articles, creating a legal framework for the measures required, and a set of detailed maps with explanations. In its published form it is accompanied by an extensive explanatory part setting out the outline of the choices made. 56. A series of tests had been carried out from which it appeared that goods trains made rather more noise than had initially been estimated. It was stated that a reduction of noise levels was expected from modifications to the rolling stock (reduction at source). However, in case these should not be sufficient, screens would be erected where necessary regardless of the expected reductions at source. Further reductions were expected from the use of modern concrete sleepers instead of the conventional wooden ones on which the initial noise level assessments had been based. Finally, if the noise levels still turned out to be too high in practice, other measures would be considered, such as further modifications to rolling stock, avoiding operations at night and lowering maximum speeds. The standards to be applied, including those with regard to the accumulation of noise caused by the new railway and the A15 motorway, were those set out in Outline Planning Decision – Part 4. Stricter standards would be applied in the vicinity of sensitive locations such as hospitals and schools and certain designated rural areas ( stiltegebieden – “silent areas”). The residential function of buildings where the noise levels would be excessive would have to be terminated. A detailed report setting out the noise levels for each municipality was appended to the routing decision. 57. Compensating measures for the preservation of the environment and the existing landscape were to include, among other things, the provision of culverts (to enable wildlife and cattle to cross underneath the railway) and of appropriate vegetation. Special measures were also envisaged for the protection of any known archaeological sites. 58. Consideration was also given to special measures required by the nature of the subsoil, which provided less support in the western part of the country than in the east; hence the need for additional supporting shoulders in certain areas. The need, at some locations, for cleaning polluted soil was noted. 59. Indications were given of how noise reduction screens, bridges and viaducts were to be built, and of how the railway would be sunk below ground level where this was unavoidable, an important objective being to limit the railway ’ s visual and environmental impact while maintaining its visual unity and continuity. Where the Betuweroute crossed existing traffic infrastructure – roads, existing railways, cycle paths – safety was the main consideration. Changes to existing ditches and waterways were unavoidable. Construction details of the electrical installations would, however, depend on the final decision on the electrical system to be used, which would be taken at a later date. E. Appeals against Outline Planning Decision – Part 3A and the Betuweroute Routing Decision 1. Appeals against Outline Planning Decision – Part 3A 60. A total of 173 appeals against Outline Planning Decision – Part 3A were lodged with the Administrative Jurisdiction Division ( Afdeling Bestuursrechtspraak ) of the Council of State, many jointly by a plurality of appellants. With the exception of the applicants Mr and Mrs Raymakers (no. 43147/98), who only raised objections of a general nature to Outline Planning Decision – Part 3A, all applicants in the present case submitted specific complaints about the proposed route of the railway in so far as their respective interests would be affected. 61. The bench of the Administrative Jurisdiction Division dealing with the appeals was composed of three ordinary councillors ( Staatsraden ) of the Council of State, namely Mr J. de Vries (President), Mr R. Cleton and Mr R.H. Lauwaars (members). Mr de Vries had been appointed Ordinary Councillor in 1982. Mr Cleton and Mr Lauwaars had been appointed ordinary councillors in 1992 and 1994 respectively. 62. On 31 January 1997, after sixteen hearings held between July and September 1996, the Administrative Jurisdiction Division delivered its decision. It rejected all the complaints of a general nature. 63. As to the specific complaints, it noted that Outline Planning Decision – Part 3A was not yet final as regards the definitive route of the railway. It therefore limited the scope of its review, for each separate location, to the question whether the government could reasonably have set the band as it had and, if so, whether it could reasonably have considered that an acceptable route was possible within the band specified or that, in view of possible measures to be taken, the interests of the affected appellants had been adequately taken into account. It reserved its opinion on the definitive location of the railway, which was to be the subject of the routing decision. 64. One group of general complaints addressed, inter alia, the assessment made by the government of the need for a new railway. These were rejected with reference to government policy aimed at maintaining and strengthening the position of the Netherlands as a European hub for transport and distribution. The Administrative Jurisdiction Division concluded that the government ’ s assessment of the need to construct the railway did not appear incorrect or unreasonable. 65. Another group of general complaints challenged the government ’ s estimates of the railway ’ s macro-economic effects and its profitability and the financial calculations underlying the government ’ s plans. These were rejected on the ground that the said estimates did not appear incorrect or unreasonable in view of the expert reports which the government had commissioned. 66. A further group of general complaints challenged the government ’ s failure to choose the most environmentally friendly alternative. The Administrative Jurisdiction Division held that the government could reasonably have come to the decision – having weighed alternatives and decided to give priority to human interests – to choose the most cost-effective solution and to use only proven technology. Where specific problems were alleged to arise, these would be dealt with separately. General complaints concerning expected noise and vibration levels, risk assessments, deprivation of property and the likelihood of damage were rejected as being either unfounded on the facts or premature given that these problems would be addressed for specific locations in the routing decision. 67. Specific complaints of twenty-two appellants were accepted as being well-founded, which led to parts of Outline Planning Decision – Part 3A ( and therefore Outline Planning Decision – Part 4) being annulled. None of those twenty-two appellants are applicants in the present case. 68. As regards the specific complaints which were rejected, the Administrative Jurisdiction Division held either that it could not be established in advance of the routing decision that the railway could not be located within the band in such a way as to meet the objections, or that the appellants ’ objections could not be met in another way, for instance by relocating business premises or offering financial compensation. 69. The decision ran to 292 pages, to which maps were appended indicating locations in respect of which parts of Outline Planning Decision – Part 3A were annulled. 2. The appeals against the Betuweroute Routing Decision 70. In total 147 appeals were lodged with the Administrative Jurisdiction Division against the Betuweroute Routing Decision. Many of these appeals were introduced by a plurality of appellants, including the applicants in the present case. As was the case in the appeals against Outline Planning Decision – Part 3A, a large number of appellants made complaints of a general nature dealing with such matters as the procedure followed. Some challenged the government ’ s refusal to consider modifications of the routing decision unless the objections put forward were of a very serious nature. Others questioned the need or desirability for building the railway at all or objected to the procedure for assessing expected noise levels. 71. The composition of the bench of the Administrative Jurisdiction Division dealing with the appeals against the routing decision was the same as the bench that had determined the appeals against Outline Planning Decision – Part 3A (see paragraph 61 above). It commenced its examination of the appeals on 18 November 1997. 72. In the course of a public hearing held on 2 December 1997, Mr and Mrs Raymakers challenged the entire membership of the Administrative Jurisdiction Division and, in the alternative, all the councillors of that Division with the exception of the extraordinary councillors ( Staatsraden in buitengewone dienst ), and in the further alternative, the councillors sitting on the case, on the ground of lack of impartiality. They argued that, since the Plenary Council of State ( Volle Raad ) was involved in advising the government on proposed legislation, it was inconsistent with Article 6 of the Convention that members of that body should subsequently decide in a judicial capacity on the application of legislation once it had been adopted. 73. A hearing on this challenge was held on 9 December 1997 before a special Chamber of three members of the Administrative Jurisdiction Division who were not involved in hearing the appeal, that is Mr E. Korthals Altes (President), Mr A.G. van Galen and Mr C. de Gooyer (members), all of whom were extraordinary councillors of the Council of State. 74. Mr and Mrs Raymakers cited the European Court ’ s judgment of 28 September 1995 in Procola v. Luxembourg (Series A no. 326). They noted similarities between the organisation and functioning of the Netherlands Council of State and the Luxembourg Conseil d ’ Etat and quoted several comments published in the legal press by learned authors. 75. Given that the Council of State ’ s advice on the introduction of the Transport Infrastructure Planning Act had been worded “in generally positive terms” and therefore conflicted with these applicants ’ own interest in maintaining the status quo, they considered that that advice had been contrary to their own position in their appeal. The Administrative Jurisdiction Division was therefore not an “impartial tribunal”. These applicants therefore asked the special Chamber to rule that the Administrative Jurisdiction Division should decline to make any decision in the case. 76. On 10 December 1997 the special Chamber of the Administrative Jurisdiction Division gave its decision. It held that, under section 8(15) of the General Administrative Law Act ( Algemene Wet Bestuursrecht ), a challenge could only be directed against judges who were dealing with the case of the party concerned. As to the challenge of the entire membership of the Administrative Jurisdiction Division, it was pointed out that if the Administrative Law Act had provided otherwise, no member of such a tribunal would in fact be in a position to entertain the challenge. Consequently, in so far as the applicants ’ challenge was directed against members of the Administrative Jurisdiction Division who were not involved in hearing the applicants ’ appeal, it was inadmissible. The challenge directed against the members who were so involved was rejected in the following terms: “The Division considers that under section 8(15) of the General Administrative Law Act each of the members who decide a case can be removed from it [ gewraakt ] on the application of a party on the grounds of facts or circumstances by which judicial impartiality might be impaired. The Division deduces therefrom that only a lack of impartiality on the part of a judge can lead to his removal from a case. Neither the wording nor the drafting history of that provision offers support for the contention that a lack of independence of the tribunal to which a judge belongs can constitute grounds for that judge ’ s removal from a case. For this reason alone the appellants ’ submissions at the hearing cannot lead to their application being granted. As to the appellants ’ reliance on Procola, the Division considers that the appeal lodged by the appellants with the Division does not raise questions on which the Council of State has, in advisory opinions on the legislation that is at issue in this appeal, expressed itself in a way contrary to the position taken by the appellants in their appeal. There is therefore no reason to fear that the members of the Council of State who are charged with deciding the appeal will consider themselves bound by any position adopted by the Council of State in the relevant advisory opinions.” 77. The hearing on the merits was resumed on 25 February 1998 and, on 28 May 1998, the Administrative Jurisdiction Division delivered its decision, which ran to 354 pages. 78. General complaints relating to the refusal of the government to consider modifications to the routing decision unless the objections put forward were of a very serious nature were dismissed on the ground that this was not unreasonable per se; it was more appropriate to consider the objections in question individually. General complaints relating to the necessity or desirability of building the railway at all – including complaints about the environmental impact report – were also dismissed. These had already been considered as part of the appeals against Outline Planning Decision – Part 3A. The question was no longer whether the building of the Betuweroute was acceptable, but only whether, in coming to the routing decision, the government could reasonably have decided as it had. 79. The complaint made by several appellants that the routing decision was taken before the appeals against the outline planning decision had been determined was rejected by the Administrative Jurisdiction Division. It held that, under section 24( 5 ) of the Transport Infrastructure Planning Act, the period for lodging an appeal against decisions taken in an outline planning decision and against the routing decision based thereon started to run simultaneously and that, therefore, it was normal that a routing decision was already taken before the outline planning decision had become final. It further considered that it did not follow from the Transport Infrastructure Planning Act that where, like in the present case, a separate appeal lay against an outline planning decision, no routing decision could be taken before the outline planning decision had become final. The mere fact that the time-limits for appealing started to run independently did not, according to the Administrative Jurisdiction Division, alter the tenor of section 24 ( 5 ) of the Transport Infrastructure Planning Act that no final outline planning decision was required for a routing decision to be taken on the basis of that decision. 80. As to noise levels, the various complaints were to be considered individually. General complaints concerning the determination of acceptable noise levels could not be entertained. Reasonable standards had been set by law, and actual noise would be monitored once the railway was in use. The safety studies were not held to have been insufficient. It was noted that there had been an additional study made in respect of areas where the concentration of the population, and therefore the group risk, was greatest. Moreover, the government had specified additional safety measures for these areas in its statement of defence, as well as specific ways of operating the railway so as to minimise the dangers attending the transport of dangerous goods. As to the individual risk, the routing decision provided that new development which would increase it within 30 m from the centre line of the track would be prevented; this made it unlikely that the individual risk would be increased further away from the track. Other objections relating to safety considerations would be dealt with on an individual basis. 81. As to vibration levels, the Administrative Jurisdiction Division held that the government could not be found to have acted unreasonably by basing its assessments on an industrial standard (DIN 4150) rather than a different standard suggested by certain appellants. Nor was the assessment of the likely nuisance caused by vibration unreasonable per se. Moreover, the government had undertaken to provide active monitoring ( that is, to measure vibration levels of its own motion) in all residential buildings located within 50 m of the railway once it was in use, and passive monitoring ( that is, to measure vibration levels after complaints were received) in residential buildings located 50 to 100 m from the railway. The government would then deal with unacceptable nuisance on a case - by - case basis. Specific problems raised by appellants would be dealt with individually. 82. With regard to general complaints about the arrangements for compensating damage, the Administrative Jurisdiction Division referred generally to the relevant provisions of the routing decision. It further noted that legal remedies were available against any specific decisions taken in this regard. It could therefore not yet be assumed at this stage that acceptable arrangements in respect of damage were not possible. 83. As to the appeal lodged by Mettler Toledo B.V. (no. 39651/98), whose extremely accurate device for calibrating scales was stated to be particularly sensitive to vibration, the Administrative Jurisdiction Division noted that studies were still ongoing as to whether the vibration likely to be caused by the railway would unduly interfere with that company ’ s business. That being so, Mettler Toledo B.V. ’ s claims could not be dismissed as unfounded; to that extent, the appeal was allowed. 84. Sterk Technisch Adviesbureau B.V. (no. 39651/98), whose premises would have to be relocated, complained that no sufficient clarity had been provided as to whether a new location of equivalent quality would be made available. The Administrative Jurisdiction Division held this complaint to be well-founded. This made it unnecessary to go into other specific complaints made by this applicant. 85. With regard to a complaint submitted jointly by Mr A.A. Kleyn (no. 39343/98) and Kleijn Financierings - en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn and Ms C.J. Kleijn (no. 39651/98) in respect of the restaurant “De Goudreinet ” which they owned and the flat inhabited by Mr A.A. Kleyn, the Administrative Jurisdiction Division found that no investigation had been undertaken as to whether it would be possible for these to continue in use. To that extent the complaint was therefore well-founded. The remainder of their appeal was dismissed. 86. As regards the appeal lodged by Mr M. Witvliet (no. 46664/99), the Administrative Jurisdiction Division rejected the objections to a possible expropriation, holding that such objections could be raised in the specific procedure set out in the Expropriation Act ( Onteigeningswet ). As to his complaint about nuisance from noise in a particular area, it was held that this element had been insufficiently examined. To that extent, his appeal was well-founded. The remainder was rejected. 87. The Administrative Jurisdiction Division rejected the appeals lodged by the other individual applicants and applicant companies. 88. In so far as the appeals were considered well-founded, the Administrative Jurisdiction Division annulled the routing decision and made an award in respect of costs. F. Subsequent developments 1. The 1998 routing decisions 89. In a letter to the Lower House of Parliament of 13 July 1998 the Minister for Transport and Communications, writing also on behalf of the Minister for Housing, Planning and Environment Management, observed that the decision of the Administrative Jurisdiction Division left 95% of the routing decision intact. It was therefore not necessary either to undertake a radical review of the project or to interrupt the building work. It was expected that the Betuweroute railway would be operational by 2005. 90. In so far as minor parts of the routing decision had been annulled, the reason therefor had merely been that insufficient information had been obtained as to whether the interests of the appellants could be safeguarded. In so far as relevant to the present case, the minister expected that in all but one or two cases changes to the original routing decision would prove unnecessary. 91. New partial routing decisions were taken in the course of 1998. An appeal lodged by Mettler Toledo B.V. was declared inadmissible by the Administrative Jurisdiction Division on 16 April 1999. The appeal lodged by Sterk Technisch Adviesbureau B.V. was dismissed by the Administrative Jurisdiction Division on 25 October 1999. The appeals lodged by Kleijn Financierings - en Leasemaatschappij B.V., Exploitatiemaatschappij De Zeiving B.V., Ms C.J.P. Kleijn, Ms P.M. Kleijn, Ms C.J. Kleijn and Mr A.A. Kleyn were dismissed by the Administrative Jurisdiction Division on 25 July 2000. Mr Witvliet apparently did not lodge an appeal against any of the 1998 routing decisions. 2. The Betuweroute Note 92. In response to suggestions made in the media to reconsider the Betuweroute project, the Minister for Transport and Communications sent a note ( Notitie Betuweroute ) to the Lower House of Parliament on 6 November 1998. In this note the minister restated the considerations which had led to the decision of 1995 to allow the project to go ahead. She also expressed the view that no new information had become available since the reconsideration of 1995 which would tend to undermine earlier assumptions as to the viability and desirability of the project. On the contrary, developments had been such as to endorse these. 3. Revision proceedings before the Administrative Jurisdiction Division 93. On 13 April 1999 the Stichting Duurzame Mobiliteit (Durable Mobility Foundation) – one of the appellants against the routing decision but not one of the applicants in the present case – lodged a request for revision ( herziening ) of the decisions of 31 January 1997 and 28 May 1998 with the Administrative Jurisdiction Division. This appellant argued that the government had either been insufficiently aware of certain relevant factual information at the time when it finalised Outline Planning Decision – Part 3A or had failed to consider this information. 94. In a decision of 9 March 2000 the Administrative Jurisdiction Division refused to revise its decisions. It found that the information in question was not of such a nature as to justify reopening the proceedings. 4. The report of the Chamber of Audit 95. From August 1999 until February 2000 the Chamber of Audit ( Algemene Rekenkamer ) undertook a study of the Betuweroute decision-making process. It published its report on 22 June 2000 under the title “ Beleidsinformatie Betuweroute ” ( Betuweroute Policy Information). 96. The purpose of the report was to provide guidance for the quality and use of information relied on by the government to ground future policy decisions relating to large infrastructure projects. The central questions were whether the quality of the information relied on in taking Betuweroute policy decisions was assured and whether this information had been used in a responsible way in the preparation of the decision-making process. Developments subsequent to the reconsideration of 1995 were taken into account. 97. The Chamber of Audit found that in the initial stages an adequate analysis of the problems to be solved had not been made. The decision-making process had related one-sidedly to the solution chosen, namely the construction of the Betuweroute railway, it having been decided at the outset that that was beneficial for the national economy and the environment; an expert analysis of the information on which the outline planning decision was based had not been sought. 98. Predictions concerning the expected volume of transport through the Netherlands were considered imprecise and unreliable. The predictions eventually relied on appeared overly optimistic; also, in some cases, it was not clear on what considerations the preference for particular predictions over others was based. Uncertainty remained, inter alia, as to the capacity of the German railway system to absorb the increased volume of goods traffic. The increasing competitiveness of inland navigation had not been considered, nor had the slow progress in some European countries (for example, Belgium and France ) of the liberalisation of rail transport. Nor had account been taken of the possible effects of levies on road transport as against the passing on of the costs of railway infrastructure to shippers, the latter possibility being envisaged in a policy proposal of the European Commission. 99. Alternatives to the Betuweroute had not been sufficiently explored. The Chamber of Audit criticised the way in which the use of the existing railway infrastructure in the Netherlands and waterborne inland and coastal transport had been considered in isolation rather than in combination. A thorough analysis of the possibilities of optimising existing east-west transport, including existing railway infrastructure, was lacking. Possible future developments in inland waterway traffic, which already accounted for a greater volume of transport than Netherlands railways, had not been looked into. 100. The assumed environmental benefit had also been misstated. The information concerning the environmental impact of alternatives to the Betuweroute railway had been inadequate and had been used in a selective way. Attention had been focused on the immediate reduction of energy use and noxious emissions without taking into account technical developments such as the increased use of cleaner and more economical engines in alternative transport; insufficient information had been provided concerning such matters as nuisance levels, external safety or soil and groundwater pollution attending alternative choices. 101. A positive feature of the process, given especially the public discussion which had arisen, was that the project had been reconsidered in its entirety in 1995 and that the arguments in favour had been presented anew in 1998 (the Betuweroute Note – see paragraph 92 above). However, the information available at those times and the way in which it had been used was open to criticism. 102. The draft of the report was transmitted in its entirety to the government. The Minister for Transport and Communications, in a reaction submitted also on behalf of the Minister for Housing, Planning and Environment Management, expressed broad agreement with the report although some of the individual findings were contested. The conclusions of the Chamber of Audit were accepted for future reference. 103. Parts of the draft report were transmitted to the NS Railway Infrastructure Division and to Railned, the Netherlands government entity which operated the railway system. The Railway Infrastructure Division disagreed with certain findings of the Chamber of Audit with regard to environmental impact estimates. Railned called into question some of the findings of the Chamber of Audit with regard to the predicted increase in the volume of rail transport. 104. The full report, including the reactions, was transmitted to the Lower House of Parliament (parliamentary year 1999-2000, 27 195, nos. 1 ‑ 2). | The applicants – individual and companies, whose homes or business premises were located on or near the track of a new railway, which was being constructed, running across the Netherlands from the Rotterdam harbour to the German border – had taken part in proceedings objecting to the decision on the determination of the exact routing of the railway. This routing decision had been taken under the procedure provided for in the Transport Infrastructure Planning Act. They submitted that the Administrative Jurisdiction Division of the Council of State, which had ruled in the dispute, could not be regarded as an independent and impartial tribunal in that the Council of State exercised both advisory functions, by giving advisory opinions on draft legislation, and judicial functions, by determining appeals under administrative law. |
533 | Death in police custody or in detention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant, Mrs Miluša Mižigárová, is a Slovak national who was born in 1979 and lives in Poprad. She is represented before the Court by Ms L. Gall of the European Roma Rights Centre, a lawyer practising in Budapest. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková. A. The circumstances of the case 6. The facts of the case, as submitted by the parties, may be summarised as follows. 7. At approximately 8.00 to 8:30 p.m. on 12 August 1999 police officers G. and J. apprehended the applicant's husband, Mr Ľubomír Šarišský, and another person (“R.K.”) on suspicion of having stolen bicycles. At the time of his arrest, Mr Šarišský was twenty-one years old and in good health. 8. Following their arrest Mr Šarišský and R.K. were driven to the District Police Department in Poprad. After four policemen questioned him, Mr Šarišský was taken to another room for further interrogation by Lieutenant F., an off-duty officer with whom he had had previous encounters. At some point during the interrogation, Mr Šarišský was shot in the abdomen. He died after four days in hospital as a result of the bullet wound sustained in the police station during his interrogation. 9. The following is a more detailed description of the relevant facts as alleged by the applicant. 1. Facts relating to the lethal injury of Mr Šarišský 10. After being taken to the District Police Department, Mr Šarišský and R.K. were questioned by police officers H. and K., who were on duty at the time. Officers G. and J. were present during the interrogation. When later testifying before the investigator, Sgt. H. stated that “Šarišský was aggressive during the interrogation, he kept getting up from the chair, banged his head against the wall saying he would jump from the window ”. Sgt. H. stated that Mr Šarišský had not been handcuffed during interrogation. According to police officer G., however, Mr Šarišský remained handcuffed, at least for the time he was present. 11. According to officer H., Lt. F. joined the interrogation when Mr Šarišský was signing the record of the interrogation. Mr Šarišský and Lt. F. started arguing, shouting at each other using their first names. Lt. F. was off duty at the time. His shift was to start at 11 p.m. 12. Lt. F. subsequently phoned his superior, the Director of the Criminal Police Department in Poprad, and informed him that Mr Šarišský and another person had been apprehended. The Director told Lt. F. that he had been informed about the arrest by the operations officer, that he would come to the task assignment meeting at 10.30 p.m. to decide who would question the suspects, and that “it might as well be him”. 13. Lt. F. considered that he had been authorised to question Mr Šarišský. He volunteered to take over the questioning. He took Mr Šarišský to his office in the District Police Directorate, which was located in a different part of the same building. Lt. F. handcuffed Mr Šarišský to a radiator and left his office for a while. 14. Upon his return Lt. F. removed the handcuffs from Mr Šarišský and resumed the questioning. Mr Šarišský was subsequently shot in the abdomen with Lt. F.'s service pistol. Lt. F. telephoned the operations officer and asked him to call the emergency services. He then ran to the operations centre to repeat his request. Lt. F. returned to his office and carried Mr Šarišský down to the vestibule. From there he was transported to a hospital. 15. At midday on 13 August 1999 Capt. T., a police officer of the Department of Supervision and Inspection Service of the Ministry of the Interior, questioned Mr Šarišský in his hospital bed. The questioning took place in the presence of the head physician. 16. Mr Šarišský was able only to move his head in response to questions asked. When asked whether he was shot by the policeman, he answered “no”; whether he shot himself, he answered “yes”; did he steal the gun from the police - “no”; did he ask for the weapon from the policeman and it was handed to him, he answered “yes”; did the policeman hit him - “yes”; and when asked if there was any one else in the room besides the policeman, he answered “no”. When asked by Capt. T., the head physician allegedly stated that Mr Šarišský had no injury to the jaw or any hematomas on the body apart from the bullet wound. 17. The applicant only learned about the incident on 13 August 1999 when she met R.K., who had been released. She went to the hospital with another person and saw that her husband was connected to different tubes. He was conscious but could not speak. She asked him whether he had shot himself. Mr Šarišský responded “no” by moving his head. She repeated the question and received the same answer from him. Her husband could not hear at all in one ear, although he had never had any problem with his hearing. He had bruises all over his body, “below the neck, ... on the right shoulder, ... on his face and below, underneath his right eye”. 18. The applicant visited her husband again on 14 August 1999, accompanied by two other persons. When asked whether a policeman had shot him, Mr Šarišský nodded. Mr Šarišský had bumps on the head and his face was swollen. They wanted to take pictures of those bruises but the head physician did not allow them to. 19. Mr Šarišský died on 17 August 1999 as a result of complications caused by the wound. On the same day an investigator from the Police Regional Investigation Office in Prešov ordered the examination and autopsy of the body. He instructed two forensic medical experts to perform an external and internal examination of the corpse and describe the individual wounds and how they arose. He ordered them to submit the report within fourteen days. 20. The forensic experts carried out the autopsy on 18 August 1999 but the autopsy report was not submitted to the investigator until 26 October 1999. 21. The report stated that there was a small, visible bruise of 3x2cm on the mucous membrane of the upper and lower lips in the left corner of the mouth. The autopsy report also described a torn drum in the left auditory canal with clear liquid. According to the report, such a condition could arise as the result of illness or inflammation of the inner ear, but it could also be caused by a blow with a blunt object. 22. The report concluded that Mr Šarišský had died a violent death, caused by post-traumatic and hemorrhagic shock induced by a perforating gunshot wound to the abdomen inflicted by a projectile fired from a police service pistol. The gunshot ruptured the large intestine, the mesentery of the small intestine, the inferior vena cava, the lumbar spine and spinal cord. There was shock after injury resulting from bleeding which, together with the subsequent complications (including acute inflammation of the soft tissues of the spinal cord and the brain and a serious defect of blood coagulation) led to the death of Mr Šarišský. 23. According to the testimonies of his close relatives, Mr Šarišský did not know how to handle weapons, he had never owned or handled a gun, and he did not have any record of mental instability. 2. Ensuing investigation and criminal proceedings against Lieutenant F. 24. Throughout the course of the subsequent investigation, Lt. F. offered differing accounts of the circumstances which preceded Mr Šarišský's death. 25. According to the statements by Lt. F., he sat down on a chair at the table next to the window in his office, whereas Mr Šarišský sat down on a chair by the wall. When the questioning resumed, Mr Šarišský denied the thefts. Allegedly, they raised their voices. According to Lt. F., he told Mr Šarišský to write the names of those responsible for the theft on a piece of paper and left him alone in the office without handcuffing him. Lt. F. alleged that when he returned to the office, he had to walk around Mr Šarišský, who was sitting on a chair with his back to the door. As Lt. F. passed him, he felt a sudden blow to his right shoulder and fell to his knees. He heard a click and realised that Mr Šarišský had cocked the pistol. According to Lt. F., when he stood up and turned to face Mr Šarišský, he saw the latter holding his service pistol in his hands, which he aimed at Lt. F. When Lt. F. asked Mr Šarišský not to do anything stupid and to give back the weapon, the latter allegedly pointed the pistol towards himself in the area of the abdomen and, sitting on the chair, pulled the trigger. 26. According to Lt. F., Mr Šarišský remained in a sitting position on the chair, holding the pistol in his hand. Lt. F. took it from him and put it on the table. He then claimed he phoned the operations officer and asked for medical help. After that, he unloaded the weapon, looked on the floor for the magazine or ammunition and re-assembled it. He looked at Mr Šarišský's wound and saw that on the paper which he had left him was the text “say hello to Kristína”. He then ran to the operations centre to repeat the call for the emergency service. Mr Šarišský remained seated on the chair and when Lt. F. returned to his office, he carried him down to the vestibule. 27. The applicant points out that both in the report where he provided explanations to his superior on the night of the incident and in a report drawn up on 13 August 1999 Lt. F. briefly described how the suspect had pulled his service pistol out of the holster, cocked it and shot himself in the abdomen. It was only in his later statements that he mentioned any violent or forceful action by the victim. The applicant also points out that Lt. F. was approximately 1.90 metres tall and weighed about 100 kilograms. Mr Šarišský was considerably smaller. 28. Moreover, Lt. F. offered an inconsistent account of how he had walked by Mr Šarišský in the moment preceding the alleged attack. Lt. F. claimed that Mr. Šarišský had been sitting with his back to the door but according to the statement of another police officer, who entered Lt. F.'s office after hearing the shot, Mr Šarišský was sitting on a chair facing the door. The Government have contested the English translation of this police officer's statement, and contend that in the Slovak version he in fact stated that Mr Šarišský was sitting with his right side facing the door. During the first reconstruction of the incident on 8 September 1999, Lt. F. told the investigator that he had passed on the right side of Mr Šarišský, but he later said that he had passed between the table and Mr Šarišský. 29. Lt. F. claimed that Mr Šarišský had attacked him from behind, surprising him and simultaneously pulling his pistol from the holster and cocking it. He could not remember how Mr Šarišský had held the pistol, or in which hand, and he gave several accounts of what he did with the pistol after removing it from the victim's hand. 30. After the incident had occurred, a police officer took the pistol of Lt. F. and placed it in the information officer's room. The investigator then seized the pistol. A task-force was formed which consisted of a forensic technician from the Criminal Police Department of the Police Force District Directorate in Poprad, a Senior Inspector at the Police Force Circuit Department in Poprad and an Investigator from the Police Force District Office of Investigation in Poprad. The task force carried out an on-site inspection on the night of 12 August 1999. Two police officers were present for the inspection. 31. Starting at 11.50 p.m., they inspected Lt. F's room. They did not take samples of gunpowder residue from the hands of Lt. F. The reason given was that they did not have the proper and necessary materials. The samples were taken at approximately 2.00 p.m. the next day by an expert technician from Kosice and no residue was found. Lt. F. claimed that he had not washed his hands before the samples were taken. As for Mr Šarišský, the nurse at the hospital had washed his hands after he underwent the first surgery, thus rendering the test useless. 32. On 20 August 1999 an investigator from the Regional Office of Investigation in Prešov ordered the Criminology and Expert Opinions Institute of the Police in Bratislava to undertake dactyloscopy, biology and chemistry test on objects, traces and samples found during the site inspection. The results of this examination were all negative. According to the expert opinion of the Criminology and Expert Opinions Institute in Bratislava which examined and evaluated the disks from the hands of Mr Šarišský and Lt. F., no particles coming from firing residue were found. The dactyloscopy expert did not find any fingerprints on the weapon which could be evaluated, due to the insufficient number of papillary lines. 33. On 6 October 1999 the same institute examined the piece of paper with the text “say hello to Kristína” and compared the writing with the writing of Lt. F. and of Mr Šarišský. The experts concluded that the text had most probably not been written by Lt. F., whereas that part of the text which read “say hello to” had most probably been written by Mr Šarišský. They could not adequately evaluate the word “Kristína” because it was written in capital letters and they did not have sufficient samples of capital letters from the deceased Mr Šarišský. The applicant submits that the investigation file which her representative examined at the Poprad's courthouse did not contain this document. An independent handwriting test was therefore impossible. 34. On 8 September 1999, between 7.10 p.m. and 9.15 p.m., the Police Regional Investigation Office in Prešov conducted a reconstitution of the events in the office of Lt. F. The experts were informed of the location of the entry and exit wounds and the location where the bullet hit the chair. The reconstruction documented possible alternatives for the shooting of Mr Šarišský, with Lt. F. and Mr Šarišský in different positions, and with each one firing the fatal shot. The ballistic expert present at the reconstruction concluded that the injury to Mr Šarišský was “most probably” self-inflicted as the direction of the shot was from below upwards and from the right to the left. 35. On the same night, from 9.20 p.m until 9.40 p.m, an experiment was performed with the aim of clarifying how the weapon was pulled and respective time intervals. During the reconstruction Lt. F. stated that his shirt had been tucked in under the belt on which he had the holster containing the weapon. According to the report, the investigation experiment measured the time intervals for three different ways of pushing and simultaneously drawing the weapon from Lt. F.'s holster, pushing with the hand, pushing with the forearm and with the left part of the body and the hand. These three alternatives were repeated twice. 36. On 12 November 1999 a police investigator from the Regional Investigation Office in Prešov accused Lt. F. of the offence of injury to health. He was questioned immediately afterwards and pleaded not guilty. 37. On 18 November 1999 Lt. F., through his counsel, submitted the grounds and his reasons for pleading not guilty. In particular, he stated that there had been nothing to lead him to the conclusion that Mr Šarišský would injure himself. He also stated his weapon had been properly secured in the holster which he had had on his belt under his shirt. He alleged that the deceased unexpectedly, suddenly, and with the use of force had pulled his weapon out of the case. 38. The applicant points out that in this testimony Lt. F. altered his previous statements regarding the non-violent behaviour of Mr Šarišský and the way he was carrying the gun. According to this testimony, the pistol had been covered by the shirt so it could not be seen, whereas during the September reconstruction of the events he had stated that his shirt had been tucked in under the belt on which he had the case with the weapon. 39. At 9.00 p.m. on 4 May 2000, in view of the new testimony given by Lt. F., the Regional Investigation Office in Prešov and technicians from the Criminal Police Department in Poprad conducted another experiment with the aim of clarifying the manner of drawing the weapon. During the experiment, when the accused was carrying the pistol covered by his shirt in accordance with Lt. F.'s testimony of 22 November 1999, the assistant did not succeed in any one of three attempts to pull the weapon. 40. On 11 May 2000, following the completion of the investigation, the applicant and her counsel perused the entire investigation file. In the record they confirmed that they had been given sufficient time for the perusal, that they proposed no further investigation be carried out, and that they had no comments on the documents included in the file. 41. On 29 May 2000 a public prosecutor indicted Lt. F. with the offence of causing injury to health under Section 224(1) and (2) of the Criminal Code as a result of his negligence in the course of duty. In the indictment the public prosecutor stated, inter alia, that Lt. F.'s testimony that the pistol was on his belt covered by the shirt was not true, because if that had been the case, Mr Šarišský could not have pulled it away from him. 42. On 18 October 2000 a judge of the District Court in Poprad issued a penal order under Section 314e of the Code of Criminal Procedure. In it he convicted Lt. F. of injury to health caused by negligence in the course of duty within the meaning of Section 224(1) and (2) of the Criminal Code. The penal order stated that Lt. F. had failed to secure his service weapon contrary to the relevant regulations and that, as a result, Mr Šarišský had managed to draw the weapon from the case and to inflict with it a lethal injury on himself. 43. Lt. F. was sentenced to one year's imprisonment, suspended for a two ‑ and-a-half-year probationary period. The penal order of 18 October 2000 was based solely on the evidence submitted by the prosecutor and it gave no account of the criminal investigation. The judge referred the injured parties, including the applicant, to civil proceedings for damages. 44. Neither the public prosecutor nor Lt. F. challenged the penal order which thus became final. 45. Lt. F. committed suicide on 23 January 2001. 46. The applicant had participated in the criminal proceedings as a victim and sought an award of damages. As she did not indicate the quantum of damages sought, as required by Article 43 (2) of the Code of Criminal Procedure, the judge advised her of the possibility of recovering damages through a civil action. 47. On 27 September 2000 the applicant's counsel lodged a claim for damages with the Ministry of Justice. On 22 January 2001 the claim was rejected on the ground that the Ministry of Justice lacked jurisdiction to hold a preliminary hearing. Pursuant to section 9 of the Act No. 58/1969, only claims for damages resulting from wrongful decisions had to be lodged with the Ministry of Justice. In the present case, the victim suffered damage as a result of the incorrect procedure by a police officer and her action therefore had to be filed directly with a court of law. 3. The applicant and her daughter's claims for damages 48. On 28 May 2001 the applicant, through her lawyer, filed an action for damages to the Bratislava III District Court. She claimed 45,000 Slovakian korunas (SKK) in compensation for damage of pecuniary nature and SKK 5 million for damage of non-pecuniary nature. As her submissions did not meet the formal requirements set out in Article 79 § 1 of the Code of Civil Procedure, in its ruling of 23 October 2001 the court gave the applicant 15 days to complement her action failing which the proceedings would be discontinued. The applicant did not comply with the request. The District Court therefore discontinued the proceedings on 17 April 2002. 49. On 9 August 2002 the applicant filed an action against the Slovak Republic under Articles 11 et seq. of the Civil Code. She claimed compensation from the State (represented by the Prešov Regional Directorate of the Police Corps) for non-pecuniary damage in the amount of SKK 900,000 alleging that, as a result of the wrongful conduct of Lt. F., there had been an interference with her husband's physical integrity which had resulted in his death. She relied on the Poprad District Court's penal order of 18 October 2000. 50. On 7 August 2003 the Poprad District Court dismissed the action. On 10 January 2005 the court of appeal quashed the first-instance decision. 51. On 6 February 2006 the Poprad District Court admitted the applicant's daughter, Ms Kristína Šarišská, as plaintiff. 52. On 6 March 2006 the applicant withdrew her claim. 53. On 31 May 2006 the District Court discontinued the proceedings in respect of the applicant. It dismissed the claim of the applicant's daughter. It had not been shown that the daughter, who had been ten months old when her father had died and had lived with her grandmother, had suffered any interference with her personal rights warranting protection under Articles 11 et seq. of the Civil Code. In addition, the court established that the defendant, as indicated by the applicant, lacked standing in the case. The applicant and her daughter should have directly sued the Prešov Regional Directorate of the Police Corps. Finally, the claim of the applicant's daughter had been filed outside the statutory time-limit. The right claimed by her had therefore lapsed. 54. On 20 September 2007 the Prešov Regional Court upheld the first ‑ instance judgment. It held that any non-pecuniary damage which the plaintiff had suffered resulted from the fatal injury which, as it had been established in the course of the criminal proceedings, her father had inflicted on himself. There had therefore been no interference with the plaintiff's personal rights as guaranteed by Articles 11 et seq. of the Civil Code. The Regional Court did not accept the first-instance finding according to which (i) the defendant lacked standing in the case and (ii) the right claimed had become statute-barred. 4. Constitutional proceedings 55. On 18 January 2008 the applicant's daughter, represented by the applicant, lodged a complaint with the Constitutional Court. The plaintiff relied, inter alia, on Articles 2, 3, 8 and 13 of the Convention and referred to the above proceedings leading to the Prešov Regional Court's judgment of 20 September 2007. 56. On 5 November 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It found no arbitrariness or unlawfulness in the proceedings complained of. With reference to its case - law the Constitutional Court further held that, in the absence of any shortcomings in the proceedings under examination, the ordinary courts involved could not be held liable for any breach of the plaintiff's material rights under Articles 2, 3 and 8 of the Convention. The Regional Court had examined the plaintiff's appeal; the latter had therefore had an effective remedy at her disposal as required by Article 13 of the Convention. B. Reports of alleged police brutality in Slovakia in respect of persons of Roma origin 1. United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (Annual Report, E/CN.4/1999) 57. The report indicates, inter alia, that human rights monitoring bodies observed that the police exerted pressure on the victims of police brutality to withdraw their complaints. 2. Conclusions and Recommendations of the Committee Against Torture (11 May 2001) 58. The report refers to allegations of instances of police participation in attacks against Roma, to the failure on the part of the authorities to carry out prompt, impartial and thorough investigations into allegations of such actions or to prosecute and punish those responsible as well as to allegations that the law enforcement officials ill-treated detainees during detention and in police custody, particularly in lock-ups and police cells. 3. The European Commission against Racism and Intolerance (ECRI): Second Report on Slovakia adopted on 10 December 1999 59. The report noted that: “...the problem of police mistreatment of members of minority groups, particularly Roma, is of particular concern to ECRI...Victims are reportedly very unwilling to come forward through fear of reprisals and for lack of confidence in the possibilities for redress. ECRI stresses that any incidence of police brutality against minority groups should not be tolerated by the authorities, and that this should be made clear by a firm and public condemnation from politicians and police leaders. Steps should be taken to investigate all alleged mispractices and punish offenders: an independent investigatory body should carry out all such investigations... At the level of prosecuting authorities and judges, it is noted that very few cases of racially motivated crime reach the courts at all, or, if they do, they are generally prosecuted as ordinary crimes.” 4. US Department of State 1999 Country Reports on Human Rights Practices – Slovak Republic 60. The report noted that: “In January police officers reportedly raided a Roma settlement in Kosice, injuring 16 Roma...In October, during a raid on a Romani community in Žehra, police allegedly used excessive force as they detained 9 Roma on charges of hooliganism. During the incident, the police shot a 13 year old Romani boy with a plastic bullet, and he was hospitalised as a result of his injury. Police reportedly use pressure and threats to discourage Roma from pressing charges of police brutality. Human rights monitors continued to charge that police...used their device of countercharges to pressure Roma victims of police brutality to drop their complaints...” 5. US Department of State 2000 Country Reports on Human Rights Practices – Slovak Republic 61. The report observed that: “Police reportedly use pressure and threats to discourage Roma from pressing charges of police brutality. In 1998 and 1999, Roma in the town of Vráble lodged complaints against a local law enforcement officer ... for allegedly attacking teenage Romani boys. The Ministry of the Interior investigated the case and found [the officer] not guilty ... In March two Roma from the eastern town of Michalovce voluntarily came to the police station for questioning. They were allegedly beaten by some police officers. The victims suffered several injuries including broken legs, hands and ribs. When questioned about the incident, the police first claimed that the action was justified but later admitted that it was unwarranted.” 6. International Helsinki Federation for Human Rights: Human Rights in the OSCE Region: The Balkans, the Caucasus, Europe, Central Asia and North America, Report 2001 62. The report indicated that: “The most common human rights violation committed by the police was the disproportionate use of coercive methods, which often resulted in injuries to the arrestee and the need for medical care. Such abuse, however, was almost impossible to prove since there was no independent control commission for complaints of ill ‑ treatment and misconduct by law enforcement officials.” 7. International Helsinki Federation Annual Report 1999 63. This report observed that: “In recent years, although racist violence against Roma in Slovakia has increased, effective prosecution and punishment have been rare. Also the police have resorted to abuse. On 27 October police officers assaulted Roma inhabitants of the village of Hermanovce, eastern Slovakia. Police entered the homes of two Roma families and beat two Roma youths, handcuffed them, forced them into the trunk of a car, and drove them to the police station ... The police offered no explanation to the detainees or their families; nor did they show arrest or search warrants to justify their actions. At the police station the two youths were allegedly beaten with truncheons and kicked. They were interrogated and shown diverse items, and pressed to falsely admit to stealing some of them. They were later released the same day, apparently without having been charged with any crime. Doctors who examined them documented bruises consistent with a beating. At no point were the two detainees advised on their rights.” | This case concerned the death of a Roma man – the applicant’s husband – during a police interrogation. He had been shot in the abdomen with the lieutenant’s service pistol and the investigation concluded that he had forcibly taken the gun from the lieutenant and shot himself. |
589 | Other applications of interim measures | I. THE CIRCUMSTANCES OF THE CASE 10. The applicants, who are all French nationals, are Mr Pierre Lambert and his wife Mrs Viviane Lambert, who were born in 1929 and 1945 respectively and live in Reims, Mr David Philippon, who was born in 1971 and lives in Mourmelon, and Mrs Anne Tuarze, who was born in 1978 and lives in Milizac. They are the parents, a half-brother and a sister respectively of Vincent Lambert, who was born on 20 September 1976. 11. Vincent Lambert sustained serious head injuries in a road-traffic accident on 29 September 2008, which left him tetraplegic and in a state of complete dependency. According to the expert medical report ordered by the Conseil d ’ État on 14 February 2014, he is in a chronic vegetative state (see paragraph 40 below). 12. From September 2008 to March 2009 he was hospitalised in the resuscitation wing, and subsequently the neurology ward, of Châlons ‑ en ‑ Champagne Hospital. From March to June 2009 he was cared for in the heliotherapy centre in Berck ‑ sur ‑ Mer, before being moved on 23 June 2009 to the unit in Reims University Hospital providing follow-up and rehabilitative care to patients in a vegetative or minimally conscious state, where he remains to date. The unit accommodates eight patients. Vincent Lambert receives artificial nutrition and hydration which is administered enterally, that is, via a gastric tube. 13. In July 2011 Vincent Lambert was assessed by a specialised unit of Liège University Hospital, the Coma Science Group, which concluded that he was in a chronic neuro-vegetative state characterised as “minimally conscious plus”. In line with the recommendations of the Coma Science Group he received daily sessions of physiotherapy from September 2011 to the end of October 2012, which yielded no results. He also received eighty-seven speech and language therapy sessions between March and September 2012, in an unsuccessful attempt to establish a code of communication. Attempts were also made to sit the patient in a wheelchair. A. First decision taken under the Law of 22 April 2005 on patients’ rights and end-of-life issues 14. As Vincent Lambert ’ s carers had observed increasing signs in 2012 of what they believed to be resistance on his part to daily care, the medical team initiated in early 2013 the collective procedure provided for by the Law of 22 April 2005 on patients ’ rights and end-of-life issues ( the so-called “Leonetti Act” – see paragraph 5 4 below). Rachel Lambert, the patient ’ s wife, was involved in the procedure. 15. The procedure resulted in a decision by Dr Kariger, the doctor in charge of Vincent Lambert and head of the department in which he is hospitalised, to withdraw the patient ’ s nutrition and reduce his hydration. The decision was put into effect on 10 April 2013. B. Injunction of 11 May 2013 16. On 9 May 2013 the applicants applied to the urgent-applications judge of the Châlons ‑ en ‑ Champagne Administrative Court on the basis of Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom ( référé liberté ) ), seeking an injunction ordering the hospital, subject to a coercive fine, to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. 17. In an order dated 11 May 2013, the urgent-applications judge granted their requests. The judge held that, since no advance directives had been drawn up by Vincent Lambert, and in the absence of a person of trust within the meaning of the relevant provisions of the Public Health Code, the collective procedure should be continued with his family, despite the fact that the latter was divided as to what should become of the patient. The judge noted that, while Vincent Lambert ’ s wife had been involved in the procedure, it was clear from examination of the case that his parents had not been informed that it had been applied, and that the decision to withdraw nutrition and limit hydration, the nature of and reasons for which had not been disclosed to them, had not respected their wishes. 18. The judge held accordingly that these procedural shortcomings amounted to a serious and manifestly unlawful breach of a fundamental freedom, namely the right to respect for life, and ordered the hospital to resume feeding and hydrating Vincent Lambert normally and to provide him with whatever care his condition required. C. Second decision taken under the Leonetti Act 19. In September 2013 a fresh collective procedure was initiated. Dr Kariger consulted six doctors, including three from outside the hospital (a neurologist, a cardiologist and an anaesthetist with experience in palliative medicine) chosen by Vincent Lambert ’ s parents, his wife and the medical team respectively. He also had regard to a written contribution from a doctor in charge of a specialised extended - care facility within a nursing home. 20. Dr Kariger also convened two meetings with the family, on 27 September and 16 November 2013, which were attended by Vincent Lambert ’ s wife and parents and his eight siblings. Rachel Lambert and six of the eight brothers and sisters spoke in favour of discontinuing artificial nutrition and hydration, while the applicants were in favour of continuing it. 21. On 9 December 2013 Dr Kariger called a meeting of all the doctors and almost all the members of the care team. Following that meeting Dr Kariger and five of the six doctors consulted stated that they were in favour of withdrawing treatment. 22. On completion of the consultation procedure Dr Kariger announced on 11 January 2014 his intention to discontinue artificial nutrition and hydration on 1 3 January, subject to an application to the administrative court. His decision, comprising a reasoned thirteen-page report, a seven ‑ page summary of which was read out to the family, observed in particular that Vincent Lambert ’ s condition was characterised by irreversible brain damage and that the treatment appeared to be futile and disproportionate and to have no other effect than to sustain life artificially. According to the report, the doctor had no doubt that Vincent Lambert had not wished, before his accident, to live under such conditions. Dr Kariger concluded that prolonging the patient ’ s life by continuing his artificial nutrition and hydration amounted to unreasonable obstinacy. D. Administrative Court judgment of 16 January 2014 23. On 13 January 2014 the applicants made a further urgent application to the Châlons ‑ en ‑ Champagne Administrative Court for protection of a fundamental freedom under Article L. 521-2 of the Administrative Courts Code, seeking an injunction prohibiting the hospital and the doctor concerned from withdrawing Vincent Lambert ’ s nutrition and hydration, and an order for his immediate transfer to a specialised extended - care facility in Oberhausbergen run by the association Amréso ‑ Bethel (see paragraph 8 above). Rachel Lambert and François Lambert, Vincent Lambert ’ s nephew, intervened in the proceedings as third parties. 24. The Administrative Court, sitting as a full court of nine judges, held a hearing on 15 January 2014. In a judgment of 16 January 2014, it suspended the implementation of Dr Kariger ’ s decision of 11 January 2014. 25. The Administrative Court began by observing that Article 2 of the Convention did not prevent States from making provisions for individuals to object to potentially life-prolonging treatment, or for a doctor in charge of a patient who was unable to express his or her wishes and whose treatment the doctor considered, after implementing a series of safeguards, to amount to unreasonable obstinacy, to withdraw that treatment, subject to supervision by the Medical Council, the hospital ’ s ethics committee, where applicable, and the administrative and criminal courts. 26. The Administrative Court went on to find that it was clear from the relevant provisions of the Public Health Code, as amended following the Leonetti Act and as elucidated by the parliamentary proceedings, that artificial enteral nutrition and hydration – which were subject, like medication, to the distribution monopoly held by pharmacies, were designed to supply specific nutrients to patients with impaired functions and which required recourse to invasive techniques to administer them – constituted a form of treatment. 27. Observing that Dr Kariger ’ s decision had been based on the wish apparently expressed by Vincent Lambert not to be kept alive in a highly dependent state, and that the latter had not drawn up any advance directives or designated a person of trust, the Administrative Court found that the views he had confided to his wife and one of his brothers had been those of a healthy individual who had not been faced with the immediate consequences of his wishes, and had not constituted the formal manifestation of an express wish, irrespective of his professional experience with patients in a similar situation. The court further found that the fact that Vincent Lambert had had a conflictual relationship with his parents, since he did not share their moral values and religious commitment, did not mean that he could be considered to have expressed a clear wish to refuse all forms of treatment, and added that no unequivocal conclusion as to his desire or otherwise to be kept alive could be drawn from his apparent resistance to the care provided. The Administrative Court held that Dr Kariger had incorrectly assessed Vincent Lambert ’ s wishes. 28. The Administrative Court also noted that, according to the report drawn up in 2011 by Liège University Hospital (see paragraph 1 3 above), Vincent Lambert was in a minimally conscious state, implying the continuing presence of emotional perception and the existence of possible responses to his surroundings. Accordingly, the administering of artificial nutrition and hydration was not aimed at keeping him alive artificially. Lastly, the court considered that, as long as the treatment did not cause any stress or suffering, it could not be characterised as futile or disproportionate. It therefore held that Dr Kariger ’ s decision had constituted a serious and manifestly unlawful breach of Vincent Lambert ’ s right to life. It issued an order suspending the implementation of the decision while rejecting the request for the patient to be transferred to the specialised extended-care facility in Oberhausbergen. E. Conseil d ’ État ruling of 14 February 2014 29. In three applications lodged on 31 January 2014, Rachel Lambert, François Lambert and Reims University Hospital appealed against that judgment to the urgent-applications judge of the Conseil d ’ État. The applicants lodged a cross-appeal, requesting Vincent Lambert ’ s immediate transfer to the specialised extended-care facility. The National Union of Associations of Head Injury and Brain Damage Victims ’ Families (UNAFTC, see paragraph 8 above) sought leave to intervene as a third party. 30. At the hearing on the urgent application held on 6 February 2014, the President of the Judicial Division of the Conseil d ’ État decided to refer the case to the full court, sitting as a seventeen-member Judicial Assembly. 31. The hearing before the full court took place on 13 February 2014. In his submissions to the Conseil d ’ État, the public rapporteur cited, inter alia, the remarks made by the Minister of Health to the members of the Senate examining the bill known as the “ Leonetti Bill ” : “While the act of withdrawing treatment ... results in death, the intention behind the act [is not to kill; it is] to allow death to resume its natural course and to relieve suffering. This is particularly important for care staff, whose role is not to take life.” 32. The Conseil d ’ État delivered its ruling on 14 February 2014. After joining the applications and granting UNAFTC leave to intervene, the Conseil d ’ État defined in the following terms the role of the urgent ‑ applications judge called upon to rule on the basis of Article L. 521 ‑ 2 of the Administrative Courts Code. “Under [Article L. 521-2], the urgent-applications judge of the administrative court, when hearing an application of this kind justified by particular urgency, may order any measures necessary to safeguard a fundamental freedom allegedly breached in a serious and manifestly unlawful manner by an administrative authority. These legislative provisions confer on the urgent-applications judge, who normally decides alone and who orders measures of an interim nature in accordance with Article L. 511-1 of the Administrative Courts Code, the power to order, without delay and on the basis of a ‘ plain and obvious ’ test, the necessary measures to protect fundamental freedoms. However, the urgent-applications judge must exercise his or her powers in a particular way when hearing an application under Article L. 521-2 ... concerning a decision taken by a doctor on the basis of the Public Health Code which would result in treatment being discontinued or withheld on grounds of unreasonable obstinacy and the implementation of which would cause irreversible damage to life. In such circumstances the judge, sitting where applicable as a member of a bench of judges, must take the necessary protective measures to prevent the decision in question from being implemented where it may not be covered by one of the situations provided for by law, while striking a balance between the fundamental freedoms in issue, namely the right to respect for life and the patient ’ s right to consent to medical treatment and not to undergo treatment that is the result of unreasonable obstinacy. In such a case, the urgent ‑ applications judge or the bench to which he or she has referred the case may, as appropriate, after temporarily suspending the implementation of the measure and before ruling on the application, order an expert medical report and, under Article R. 625-3 of the Administrative Courts Code, seek the opinion of any person whose expertise or knowledge are apt to usefully inform the court ’ s decision. ” 33. The Conseil d ’ État found that it was clear from the very wording of the relevant provisions of the Public Health Code (Articles L. 1110 ‑ 5, L. 1111 ‑ 4 and R. 4127 ‑ 37) and from the parliamentary proceedings that the provisions in question were general in scope and applied to Vincent Lambert just as they did to all users of the health service. The Conseil d ’ État stated as follows. “It is clear from these provisions that each individual must receive the care most appropriate to his or her condition and that the preventive or exploratory acts carried out and the care administered must not subject the patient to disproportionate risks in relation to the anticipated benefits. Such acts must not be continued with unreasonable obstinacy and may be discontinued or withheld where they appear to be futile or disproportionate or to have no other effect than to sustain life artificially, whether or not the patient is in an end - of - life situation. Where the patient is unable to express his or her wishes, any decision to limit or withdraw treatment on the ground that continuing it would amount to unreasonable obstinacy may not be taken by the doctor, where such a measure is liable to endanger the life of the patient, without the collective procedure defined in the Code of Medical Ethics and the rules on consultation laid down in the Public Health Code having been followed. If the doctor takes such a decision he or she must in any event preserve the patient ’ s dignity and dispense palliative care. Furthermore, it is clear from the provisions of Articles L. 1110-5 and L. 1111 -4 of the Public Health Code, as elucidated by the parliamentary proceedings prior to the passing of the Law of 22 April 2005, that the legislature intended to include among the forms of treatment that may be limited or withdrawn on grounds of unreasonable obstinacy all acts which seek to maintain the patient ’ s vital functions artificially. Artificial nutrition and hydration fall into this category of acts and may accordingly be withdrawn where continuing them would amount to unreasonable obstinacy.” 34. The Conseil d ’ État went on to find that its task was to satisfy itself, having regard to all the circumstances of the case, that the statutory conditions governing any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy had been met. To that end it needed to have the fullest information possible at its disposal, in particular concerning Vincent Lambert ’ s state of health. Accordingly, it considered it necessary before ruling on the application to order an expert medical report to be prepared by practitioners with recognised expertise in neuroscience. The experts – acting on an independent and collective basis, after examining the patient, meeting the medical team and the care staff and familiarising themselves with the patient ’ s entire medical file – were to give their opinion on Vincent Lambert ’ s current condition and provide the Conseil d ’ État with all relevant information as to the prospect of any change. 35. The Conseil d ’ État decided to entrust the expert report to a panel of three doctors appointed by the President of the Judicial Division on proposals from the President of the National Medical Academy, the Chair of the National Ethics Advisory Committee and the President of the National Medical Council respectively. The remit of the panel of experts, which was to report within two months of its formation, read as follows. “(i) To describe Mr. Lambert ’ s current clinical condition and how it has changed since the review carried out in July 2011 by the Coma Science Group of Liège University Hospital; (ii) To express an opinion as to whether the patient ’ s brain damage is irreversible and as to the clinical prognosis; (iii) To determine whether the patient is capable of communicating, by whatever means, with those around him; (iv) To assess whether there are any signs to suggest at the present time that Mr Lambert reacts to the care being dispensed to him and, if so, whether those reactions can be interpreted as a rejection of that care, as suffering, as a desire for the life-sustaining treatment to be withdrawn or, on the contrary, as a desire for the treatment to be continued.” 36. The Conseil d ’ État also considered it necessary, in view of the scale and the difficulty of the scientific, ethical and deontological issues raised by the case and in accordance with Article R. 625-3 of the Administrative Courts Code, to request the National Medical Academy, the National Ethics Advisory Committee and the National Medical Council, together with Mr Jean Leonetti, the rapporteur for the Law of 22 April 2005, to submit general written observations by the end of April 2014 designed to clarify for it the application of the concepts of unreasonable obstinacy and sustaining life artificially for the purposes of Article L. 1110-5, with particular regard to individuals who, like Vincent Lambert, were in a minimally conscious state. 37. Lastly, the Conseil d ’ État rejected the applicants ’ request for Vincent Lambert to be transferred to a specialised extended-care facility (see paragraph 29 above). F. Expert medical report and general observations 1. Expert medical report 38. The experts examined Vincent Lambert on nine occasions. They familiarised themselves with the entire medical file, and in particular the report of the Coma Science Group in Liège (see paragraph 1 3 above), the treatment file and the administrative file, and had access to all the imaging tests. They also consulted all the items in the judicial case file of relevance for their expert report. In addition, between 24 March and 23 April 2014, they met all the parties ( the family, the medical and care team, the medical consultants and representatives of UNAFTC and the hospital) and carried out a series of tests on Vincent Lambert. 39. On 5 May 2014 the experts sent their preliminary report to the parties for comments. Their final report, submitted on 26 May 2014, provided the following replies to the questions asked by the Conseil d ’ État. ( a) Vincent Lambert ’ s clinical condition and how it had changed 40. The experts found that Vincent Lambert ’ s clinical condition corresponded to a vegetative state, with no signs indicating a minimally conscious state. Furthermore, they stressed that he had difficulty swallowing and had seriously impaired motor functions of all four limbs, with significant retraction of the tendons. They noted that his state of consciousness had deteriorated since the assessment carried out in Liège in 2011. ( b) Irreversible nature of the brain damage and clinical prognosis 41. The experts pointed out that the two main factors to be taken into account in assessing whether or not brain damage was irreversible were, firstly, the length of time since the accident which had caused the damage and, secondly, the nature of the damage. In the present case they noted that five and a half years had passed since the initial head injury and that the imaging tests showed severe cerebral atrophy testifying to permanent neuron loss, near-total destruction of strategic regions such as both parts of the thalamus and the upper part of the brain stem, and serious damage to the communication pathways in the brain. They concluded that the brain damage was irreversible. They added that the lengthy period of progression, the patient ’ s clinical deterioration since July 2011, his current vegetative state, the destructive nature and extent of the brain damage and the results of the functional tests, coupled with the severity of the motor impairment of all four limbs, pointed to a poor clinical prognosis. ( c) Vincent Lambert ’ s capacity to communicate with those around him 42. In the light of the tests carried out, and particularly in view of the fact that the course of speech and language therapy carried out in 2012 had not succeeded in establishing a code of communication, the experts concluded that Vincent Lambert was not capable of establishing functional communication with those around him. ( d) Existence of signs suggesting that Vincent Lambert reacted to the care provided, and interpretation of those signs 43. The experts observed that Vincent Lambert reacted to the care provided and to painful stimuli, but concluded that these were non ‑ conscious responses. In their view, it was not possible to interpret them as conscious awareness of suffering or as the expression of any intent or wish with regard to the withdrawal or continuation of treatment. 2. General observations 44. On 22 and 29 April and 5 May 2014 the Conseil d ’ État received the general observations of the National Medical Council, Mr Jean Leonetti, rapporteur for the Law of 22 April 2005, the National Medical Academy and the National Ethics Advisory Committee. The National Medical Council made clear in particular that, in using the expression “ no other effect than to sustain life artificially” in Article L. 1110 ‑ 5 of the Public Health Code, the legislature had sought to address the situation of patients who not only were being kept alive solely by the use of methods and techniques replacing key vital functions, but also, and above all, whose cognitive and relational functions were profoundly and irreversibly impaired. It emphasised the importance of the notion of temporality, stressing that where a pathological condition had become chronic, resulting in the person ’ s physiological deterioration and the loss of his or her cognitive and relational faculties, obstinacy in administering treatment could be regarded as unreasonable if no signs of improvement were apparent. Mr Leonetti stressed that the Law of 22 April 2005 was applicable to patients who had brain damage and thus suffered from a serious condition which, in the advanced stages, was incurable, but who were not necessarily “at the end of life”. Accordingly, the legislature had referred in its title to “patients ’ rights and end ‑ of ‑ life issues” rather than “patients ’ rights in end ‑ of ‑ life situations ”. He outlined the criteria for unreasonable obstinacy and the factors used to assess it and stated that the reference to treatment having “ no other effect than to sustain life artificially”, which was stricter than the wording originally envisaged (namely, treatment “which prolongs life artificially”) was more restrictive and referred to artificially sustaining life “in the purely biological sense, in circumstances where, firstly, the patient has major irreversible brain damage and, secondly, his or her condition offers no prospect of a return to awareness of self or relationships with others”. He pointed out that the Law of 22 April 2005 gave the doctor sole responsibility for the decision to withdraw treatment and that it had been decided not to pass that responsibility on to the family, in order to avoid any feelings of guilt and to ensure that the person who took the decision was identified. The National Medical Academy reiterated the fundamental prohibition barring doctors from deliberately taking another ’ s life, which formed the basis for the relationship of trust between doctor and patient. The Academy reiterated its long-standing position according to which the Leonetti Act was applicable not only to the various “end-of-life” situations, but also to situations raising the very difficult ethical issue of the “ending of life” in the case of patients in “survival” mode, in a minimally conscious or chronic vegetative state. The National Ethics Advisory Committee conducted an in ‑ depth analysis of the difficulties surrounding the notions of unreasonable obstinacy, treatment and sustaining life artificially, summarised the medical data concerning minimally conscious states, and addressed the ethical issues arising out of such situations. It recommended, in particular, a process of reflection aimed at ensuring that the collective discussions led to a genuine collective decision-making process and that, where no consensus could be reached, there was a possibility of mediation. G. Conseil d ’ État judgment of 24 June 2014 45. A hearing took place on 20 June 2014 before the Conseil d ’ État. In his submissions the public rapporteur stressed, in particular, the following : “ ... [ T ]he legislature did not wish to impose on those in the caring professions the burden of bridging the gap which exists between allowing death to take its course when it can no longer be prevented and actively causing death by administering a lethal substance. By discontinuing treatment, a doctor is not taking the patient ’ s life, but is resolving to withdraw when there is nothing more to be done.” The Conseil d ’ État delivered its judgment on 24 June 2014. After granting leave to Marie ‑ Geneviève Lambert, Vincent Lambert ’ s half-sister, to intervene as a third party, and reiterating the relevant provisions of domestic law as commented on and elucidated in the general observations received, the Conseil d ’ État examined in turn the applicants ’ arguments based on the Convention and on domestic law. 46. On the first point the Conseil d ’ État reiterated that, where the urgent ‑ applications judge was called on to hear an application under Article L. 521-2 of the Administrative Courts Code (urgent application for protection of a fundamental freedom) concerning a decision taken by a doctor under the Public Health Code which would result in treatment being discontinued or withheld on the ground of unreasonable obstinacy, and implementation of that decision would cause irreversible damage to life, the judge was required to examine any claim that the provisions in question were incompatible with the Convention (see paragraph 32 above). 47. In the case before it the Conseil d ’ État replied in the following terms to the arguments based on Articles 2 and 8 of the Convention. “Firstly, the disputed provisions of the Public Health Code defined a legal framework reaffirming the right of all persons to receive the most appropriate care, the right to respect for their wish to refuse any treatment and the right not to undergo medical treatment resulting from unreasonable obstinacy. Those provisions do not allow a doctor to take a life-threatening decision to limit or withdraw the treatment of a person incapable of expressing his or her wishes, except on the dual, strict condition that continuation of that treatment would amount to unreasonable obstinacy and that the requisite safeguards are observed, namely that account is taken of any wishes expressed by the patient and that at least one other doctor and the care team are consulted, as well as the person of trust, the family or another person close to the patient. Any such decision by a doctor is open to appeal before the courts in order to review compliance with the conditions laid down by law. Hence the disputed provisions of the Public Health Code, taken together, in view of their purpose and the conditions attaching to their implementation, cannot be said to be incompatible with the requirements of Article 2 of the Convention ..., or with those of Article 8 ... ” The Conseil d ’ État also rejected the applicants ’ arguments based on Articles 6 and 7 of the Convention, finding that the role entrusted to the doctor under the provisions of the Public Health Code was not incompatible with the duty of impartiality flowing from Article 6, and that Article 7, which applied to criminal convictions, was not relevant to the case before it. 48. Regarding the application of the relevant provisions of the Public Health Code, the Conseil d ’ État held as follows. “Although artificial nutrition and hydration are among the forms of treatment which may be withdrawn in cases where their continuation would amount to unreasonable obstinacy, the sole fact that a person is in an irreversible state of unconsciousness or, a fortiori, has lost his or her autonomy irreversibly and is thus dependent on such a form of nutrition and hydration, does not by itself amount to a situation in which the continuation of treatment would appear unjustified on grounds of unreasonable obstinacy. In assessing whether the conditions for the withdrawal of artificial nutrition and hydration are met in the case of a patient with severe brain damage, however caused, who is in a vegetative or minimally conscious state and is thus unable to express his or her wishes, and who depends on such nutrition and hydration as a means of life support, the doctor in charge of the patient must base his or her decision on a range of medical and non-medical factors whose relative weight cannot be determined in advance but will depend on the circumstances of each patient, so that the doctor must assess each situation on its own merits. In addition to the medical factors – which must cover a sufficiently long period, be assessed collectively and relate in particular to the patient ’ s current condition, the change in that condition since the accident or illness occurred, his or her degree of suffering and the clinical prognosis – the doctor must attach particular importance to any wishes the patient may have expressed previously, whatever their form or tenor. In that regard, where such wishes remain unknown, they cannot be assumed to consist in a refusal by the patient to be kept alive in the current conditions. The doctor must also take into account the views of the person of trust, where the patient has designated such a person, of the members of the patient ’ s family or, failing this, of another person close to the patient, while seeking to establish a consensus. In assessing the patient ’ s particular situation, the doctor must be guided primarily by a concern to act with maximum beneficence towards the patient ... ” 49. The Conseil d ’ État went on to find that it was its task, in the light of all the circumstances of the case and the evidence produced in the course of the adversarial proceedings before it, in particular the expert medical report, to ascertain whether the decision taken by Dr Kariger on 11 January 2014 had complied with the statutory conditions imposed on any decision to withdraw treatment whose continuation would amount to unreasonable obstinacy. 50. In that connection the Conseil d ’ État ruled as follows. “Firstly, it is clear from the examination of the case that the collective procedure conducted by Dr Kariger ..., prior to the taking of the decision of 11 January 2014, was carried out in accordance with the requirements of Article R. 4127-37 of the Public Health Code and involved the consultation of six doctors, although that Article simply requires that the opinion of one doctor and, where appropriate, of a second be sought. Dr Kariger was not legally bound to allow the meeting of 9 December 2013 to be attended by a second doctor designated by Mr Lambert ’ s parents in addition to the one they had already designated. Nor does it appear from the examination of the case that some members of the care team were deliberately excluded from that meeting. Furthermore, Dr Kariger was entitled to speak with Mr François Lambert, the patient ’ s nephew. The fact that Dr Kariger opposed a request for him to withdraw from Mr Lambert ’ s case and for the patient to be transferred to another establishment, and the fact that he expressed his views publicly, do not amount, having regard to all the circumstances of the present case, to a failure to comply with the obligations implicit in the principle of impartiality, which Dr Kariger respected. Accordingly, contrary to what was argued before the Châlons-en-Champagne Administrative Court, the procedure preceding the adoption of the decision of 11 January 2014 was not tainted by any irregularity. Secondly, the experts ’ findings indicate that ‘ Mr Lambert ’ s current clinical condition corresponds to a vegetative state ’, with ‘ swallowing difficulties, severe motor impairment of all four limbs, some signs of dysfunction of the brainstem ’ and ‘ continued ability to breathe unaided ’. The results of the tests carried out from 7 to 11 April 2014 to assess the patient ’ s brain structure and function ... were found to be consistent with such a vegetative state. The experts found that the clinical progression, characterised by the disappearance of the fluctuations in Mr Lambert ’ s state of consciousness recorded during the assessment carried out in July 2011 by the Coma Science Group at Liège University Hospital and by the failure of the active therapies recommended at the time of that assessment, were suggestive of ‘ a deterioration in the [patient ’ s] state of consciousness since that time ’. Furthermore, according to the findings set out in the experts ’ report, the exploratory tests which were carried out revealed serious and extensive brain damage, as evidenced in particular by ‘ severe impairment of the structure and metabolism of the sub-cortical regions of crucial importance for cognitive function ’ and ‘ major structural dysfunction of the communication pathways between the regions of the brain involved in consciousness ’. The severity of the cerebral atrophy and of the damage observed, coupled with the five-and-a-half-year period that had elapsed since the initial accident, led the experts to conclude that the brain damage was irreversible. Furthermore, the experts concluded that ‘ the lengthy period of progression, the patient ’ s clinical deterioration since 2011, his current vegetative state, the destructive nature and the extent of the brain damage, the results of the functional tests and the severity of the motor impairment of all four limbs ’ pointed to a ‘ poor clinical prognosis ’. Lastly, while noting that Mr Lambert was capable of reacting to the care administered and to certain stimuli, the experts indicated that the characteristics of those reactions suggested that they were non-conscious responses. The experts did not consider it possible to interpret these behavioural reactions as evidence of ‘ conscious awareness of suffering ’ or as the expression of any intent or wish with regard to the withdrawal or continuation of the treatment keeping the patient alive. These findings, which the experts reached unanimously following a collective assessment in the course of which the patient was examined on nine separate occasions, thorough cerebral tests were performed, meetings were held with the medical team and care staff involved and the entire file was examined, confirm the conclusions drawn by Dr Kariger as to the irreversible nature of the damage and Mr Lambert ’ s clinical prognosis. The exchanges which took place in the adversarial proceedings before the Conseil d ’ État subsequent to submission of the experts ’ report do nothing to invalidate the experts ’ conclusions. While it can be seen from the experts ’ report, as just indicated, that Mr Lambert ’ s reactions to care are not capable of interpretation and thus cannot be regarded as expressing a wish as to the withdrawal of treatment, Dr Kariger in fact indicated in the impugned decision that the behaviour concerned was open to various interpretations, all of which needed to be treated with great caution, and did not include this aspect in the reasons for his decision. Thirdly, the provisions of the Public Health Code allow account to be taken of a patient ’ s wishes expressed in a form other than advance directives. It is apparent from the examination of the case, and in particular from the testimony of Mrs Rachel Lambert, that she and her husband, both nurses, had often discussed their respective professional experiences in dealing with patients under resuscitation and those with multiple disabilities, and that Mr Lambert had on several such occasions clearly voiced the wish not to be kept alive artificially if he were to find himself in a highly dependent state. The tenor of those remarks, reported by Mrs Rachel Lambert in precise detail and with the corresponding dates, was confirmed by one of Mr Lambert ’ s brothers. While these remarks were not made in the presence of Mr Lambert ’ s parents, the latter did not claim that their son could not have made them or that he would have expressed wishes to the contrary, and several of Mr Lambert ’ s siblings stated that the remarks concerned were in keeping with their brother ’ s personality, past experience and personal opinions. Accordingly, in stating among the reasons for the decision at issue his certainty that Mr Lambert did not wish, before his accident, to live under such conditions, Dr Kariger cannot be regarded as having incorrectly interpreted the wishes expressed by the patient before his accident. Fourthly, the doctor in charge of the patient is required, under the provisions of the Public Health Code, to obtain the views of the patient ’ s family before taking any decision to withdraw treatment. Dr Kariger complied with this requirement in consulting Mr Lambert ’ s wife, parents and siblings in the course of the two meetings referred to earlier. While Mr Lambert ’ s parents and some of his brothers and sisters opposed the discontinuing of treatment, Mr Lambert ’ s wife and his other siblings stated their support for the proposal to withdraw treatment. Dr Kariger took these different opinions into account. In the circumstances of the case, he concluded that the fact that the members of the family were not unanimous as to what decision should be taken did not constitute an impediment to his decision. It follows from all the above considerations that the various conditions imposed by the law before any decision can be taken by the doctor in charge of the patient to withdraw treatment which has no effect other than to sustain life artificially, and whose continuation would thus amount to unreasonable obstinacy, may be regarded, in the case of Mr Vincent Lambert and in the light of the adversarial proceedings before the Conseil d ’ État, as having been met. Accordingly, the decision taken by Dr Kariger on 11 January 2014 to withdraw the artificial nutrition and hydration of Mr Vincent Lambert cannot be held to be unlawful. ” 51. Accordingly, the Conseil d ’ État set aside the Administrative Court ’ s judgment and dismissed the applicants ’ claims. II. In the cases contemplated in the fifth paragraph of Article L. 1111-4 and the first paragraph of Article L. 1111-13, the decision to limit or withdraw the treatment administered may not be taken unless a collective procedure has first been implemented. The doctor may set the collective procedure in motion on his or her own initiative. He or she shall be required to do so in the light of any advance directives given by the patient and submitted by one of the persons in possession of them mentioned in Article R. 1111-19, or at the request of the person of trust, the family or, failing this, another person close to the patient. The persons in possession of the patient ’ s advance directives, the person of trust, the family or, where appropriate, another person close to the patient shall be informed as soon as the decision has been taken to implement the collective procedure. The decision to limit or withdraw treatment shall be taken by the doctor in charge of the patient, after consultation with the care team where this exists, and on the basis of the reasoned opinion of at least one doctor acting as a consultant. There must be no hierarchical link between the doctor in charge of the patient and the consultant. The reasoned opinion of a second consultant shall be sought by these doctors if either of them considers it necessary. The decision to limit or withdraw treatment shall take into account any wishes previously expressed by the patient, in particular in the form of advance directives, if drawn up, the views of the person of trust the patient may have designated and those of the family or, failing this, of another person close to the patient. ... Reasons shall be given for any decision to limit or withdraw treatment. The opinions received, the nature and tenor of the consultations held within the care team and the reasons for the decision shall be recorded in the patient ’ s file. The person of trust, if one has been designated, the family or, failing this, another person close to the patient, shall be informed of the nature of and the reasons for the decision to limit or withdraw treatment. III. Where it has been decided to limit or withdraw treatment under Article L. 1110 ‑ 5 and Article L. 1111-4 or L. 1111-13, in the circumstances provided for in points I and II of the present Article, the doctor, even if the patient ’ s suffering cannot be assessed on account of his or her cerebral state, shall put in place the necessary treatment, in particular pain relief and sedation, to support the patient in accordance with the principles and conditions laid down in Article R. 4127-38. He or she shall also ensure that the persons close to the patient are informed of the situation and receive the support they require.” 55. Article R. 4127-38 of the Code provides: “The doctor must support the dying person until the moment of death, ensure, through appropriate treatment and measures, the quality of life as it nears its end, preserve the patient ’ s dignity, and comfort those close to him or her. Doctors do not have the right to take life intentionally .” B. Private members ’ bill of 21 January 2015 56. Two members of Parliament (Mr Leonetti and Mr Claeys) tabled a bill before the National Assembly on 21 January 2015 proposing in particular the following amendments to the Law of 22 April 2005: – section 2 of the bill specifies that artificial nutrition and hydration constitute a form of treatment; – advance directives are to be binding on the doctor and there will no longer be a time-limit on their validity (they are currently valid for three years), their drafting will be subject to a prescribed procedure and they will be more accessible. Where there are no advance directives, the role of the person of trust is spelled out ( the latter ’ s task is to express the patient ’ s wishes, and his or her testimony takes precedence over any other ); – the bill expressly acknowledges that every individual has “the right to refuse or not to undergo any treatment” and that the doctor cannot insist on continuing with it (previous wording). Nevertheless, the doctor must continue to provide support to the patient, particularly in the form of palliative care; – the right not to suffer is recognised (the doctor must put in place all available pain relief and sedation to deal with suffering in the advanced or terminal stages, even if these may have the effect of shortening the time left to live); – the right of patients in the terminal stages to deep, continuous sedation until death is also recognised: the withdrawal of treatment (including artificial nutrition and hydration) must always be accompanied by sedation. Where the patient is incapable of expressing his or her wishes the bill provides – subject to account being taken of the patient ’ s wishes and in accordance with a collective procedure – that the doctor is required to discontinue or withhold treatment which “has no other effect than to sustain life artificially” (in the current wording, the doctor may discontinue such treatment). If these criteria are met, the patient has the right to deep, continuous sedation until death occurs. The bill was adopted on 17 March 2015 by the National Assembly and is currently being examined in the Senate. C. Administrative Courts Code 57. Article L. 521 ‑ 2 of the Administrative Courts Code, concerning urgent applications for protection of a fundamental freedom, reads as follows: “Where such an application is submitted to him or her as an urgent matter, the urgent-applications judge may order whatever measures are necessary to protect a fundamental freedom which has allegedly been breached in a serious and manifestly unlawful manner by a public - law entity or an organisation governed by private law responsible for managing a public service, in the exercise of their powers. The urgent ‑ applications judge shall rule within forty-eight hours.” 58. Article R. 625 ‑ 3 of the same Code provides: “The bench examining the case may call on any person whose expertise or knowledge might usefully inform its determination of the case to submit general observations on the points in issue. The opinion shall be submitted in writing. It shall be communicated to the parties ... ” III. COUNCIL OF EUROPE MATERIALS A. The Oviedo Convention on Human Rights and Biomedicine 59. The Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (known as the Oviedo Convention on Human Rights and Biomedicine), which was adopted in 1997 and entered into force on 1 December 1999, has been ratified by twenty ‑ nine of the Council of Europe member States. Its relevant provisions read as follows: Article 1 – Purpose and object “Parties to this Convention shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. ... ” Article 5 – General rule “An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it. This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks. The person concerned may freely withdraw consent at any time.” Article 6 – Protection of persons not able to consent “1. Subject to Articles 17 and 20 below, an intervention may only be carried out on a person who does not have the capacity to consent, for his or her direct benefit. ... 3. Where, according to law, an adult does not have the capacity to consent to an intervention because of a mental disability, a disease or for similar reasons, the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law. The individual concerned shall as far as possible take part in the authorisation procedure. 4. The representative, the authority, the person or the body mentioned in paragraphs 2 and 3 above shall be given, under the same conditions, the information referred to in Article 5. 5. The authorisation referred to in paragraphs 2 and 3 above may be withdrawn at any time in the best interests of the person concerned.” Article 9 – Previously expressed wishes “The previously expressed wishes relating to a medical intervention by a patient who is not, at the time of the intervention, in a state to express his or her wishes shall be taken into account.” B. The “ Guide on the decision-making process regarding medical treatment in end-of-life situations ” 60. This Guide was drawn up by the Committee on Bioethics of the Council of Europe in the course of its work on patients ’ rights and with the intention of facilitating the implementation of the principles enshrined in the Oviedo Convention. Its aims are to propose reference points for the implementation of the decision-making process regarding medical treatment in end-of-life situations, to bring together both normative and ethical reference works and elements relating to good medical practice which may be useful to health-care professionals dealing with the implementation of the decision ‑ making process, and to contribute, through the clarification it provides, to the overall discussion on the subject. 61. The Guide cites as the ethical and legal frames of reference for the decision-making process the principles of autonomy (free, informed and prior consent of the patient), beneficence and non-maleficence, and justice (equitable access to health care). It specifies that doctors must not dispense treatment which is needless or disproportionate in view of the risks and constraints it entails. They must provide patients with treatment that is proportionate and suited to their situation. They also have a duty to take care of their patients, ease their suffering and provide them with support. Treatment covers interventions which aim to improve a patient ’ s state of health by acting on the causes of the illness, but also interventions which have no bearing on the aetiology of the illness but act on the symptoms, or which are responses to an organ dysfunction. Under the heading “Disputed issues”, the Guide states as follows. “ The question of limiting, withdrawing or withholding artificial hydration and nutrition Food and drink given to patients who are still able to eat and drink themselves are external contributions meeting physiological needs, which should always be satisfied. They are essential elements of care which should be provided unless the patient refuses them. Artificial nutrition and hydration are given to a patient following a medical indication and imply choices concerning medical procedures and devices (perfusion, feeding tubes). Artificial nutrition and hydration are regarded in a number of countries as forms of treatment, which may therefore be limited or withdrawn in the circumstances and in accordance with the guarantees stipulated for limitation or withdrawal of treatment (refusal of treatment expressed by the patient, refusal of unreasonable obstinacy or disproportionate treatment assessed by the care team and accepted in the framework of a collective procedure). The considerations to be taken into account in this regard are the wishes of the patient and the appropriate nature of the treatment in the situation in question. In other countries, however, it is considered that artificial nutrition and hydration do not constitute treatment which can be limited or withdrawn, but a form of care meeting the individual ’ s basic needs, which cannot be withdrawn unless the patient, in the terminal phase of an end-of-life situation, has expressed a wish to that effect. The question of the appropriate nature, in medical terms, of artificial nutrition and hydration in the terminal phase is itself a matter of debate. Some take the view that implementing or continuing artificial hydration and nutrition are necessary for the comfort of a patient in an end-of-life situation. For others, the benefit of artificial hydration and nutrition for the patient in the terminal phase, taking into account research in palliative care, is questionable.” 62. The Guide concerns the decision-making process regarding medical treatment as it applies to end ‑ of ‑ life situations (including its implementation, modification, adaptation, limitation or withdrawal). It does not address the issues of euthanasia or assisted suicide, which some national legislations authorise. 63. While other parties are involved in the decision-making process, the Guide stresses that the principal party is the patient himself or herself. When the patient cannot or can no longer take part in making decisions, they will be taken by a third party according to the procedures laid down in the relevant national legislation. However, the patient should nonetheless be involved in the decision-making process by means of any previously expressed wishes. The Guide lists the various forms these may take: the patient may have confided his or her intentions orally to a family member, a close friend or a person of trust designated as such; or they may be set down formally, in advance directives or a living will or as powers granted to another person, sometimes referred to as powers of future protection ( mandat de protection future ). 64. Other persons involved in the decision-making process may include the patient ’ s legal representative or a person granted a power of attorney, family members and close friends, and the carers. The Guide stresses that doctors have a vital, not to say primary, role because of their ability to appraise the patient ’ s situation from a medical viewpoint. Where patients are not, or are no longer, able to express their wishes, doctors are the people who, in the context of the collective decision-making process, having involved all the health-care professionals concerned, will take the clinical decision guided by the best interests of the patient. To this end, they will have taken note of all the relevant elements (consultation of family members, close friends, the person of trust, and so on ) and taken into account any previously expressed wishes. In some systems the decision is taken by a third party, but in all cases doctors are the ones to ensure that the decision-making process is properly conducted. 65. The Guide reiterates that the patient should always be at the centre of any decision-making process, which takes on a collective dimension when the patient is no longer willing or able to participate in it directly. The Guide identifies three main stages in the decision-making process: an individual stage (each party forms his or her arguments on the basis of the information gathered), a collective stage (the various parties take part in exchanges and discussions) and a concluding stage (when the actual decision is taken). 66. The Guide points out that sometimes, where positions diverge significantly or the question is highly complex or specific, there may be a need to make provision to consult third parties either to contribute to the debate, to overcome a problem or to resolve a conflict. The consultation of a clinical ethics committee may, for example, be appropriate. At the end of the collective discussion, agreement must be reached. A conclusion must be drawn and validated collectively and then formalised in writing. 67. If the decision is taken by the doctor, it should be taken on the basis of the conclusions of the collective discussion and be announced, as appropriate, to the patient, the person of trust and/or the entourage of the patient, the care team and the third parties concerned who have taken part in the process. The decision should also be formalised (in the form of a written summary of the reasons) and kept in an identified place. 68. The Guide highlights the disputed nature of the use of deep sedation in the terminal phase, which may have the effect of shortening the time left to live. Lastly, it suggests an evaluation of the decision-making process after its application. C. Committee of Ministers Recommendation 69. In Recommendation CM/Rec(2009)11 on principles concerning continuing powers of attorney and advance directives for incapacity, the Committee of Ministers recommended to member States that they promote these practices, and defined a number of principles to assist member States in regulating them. D. Parliamentary Assembly materials 70. In Recommendation 1418 (1999) on protection of the human rights and dignity of the terminally ill and the dying, the Parliamentary Assembly recommended to the Committee of Ministers that it encourage the member States to respect and protect the dignity of terminally ill or dying persons in all respects, including their right to self-determination, while taking the necessary measures: (i) to ensure that patients ’ advance directives or living wills refusing specific medical treatments are observed, where the patients are no longer able to express their wishes; (ii) to ensure that ‑ notwithstanding the physician ’ s ultimate therapeutic responsibility ‑ the wishes they have expressed with regard to particular forms of treatment are taken into account, provided this does not violate their human dignity. 71. Parliamentary Assembly Resolution 1859 (2012) entitled “ Protecting human rights and dignity by taking into account previously expressed wishes of patients ” reiterates the principles of personal autonomy and consent enshrined in the Oviedo Convention (see paragraph 5 9 above), according to which no one can be compelled to undergo any medical treatment against his or her will. The Resolution lays down guidelines for national parliaments in relation to advance directives, living wills and continuing powers of attorney. | The applicants were the parents, a half-brother and a sister of Vincent Lambert who sustained a head injury in a road-traffic accident in 2008 as a result of which he was tetraplegic. They complained in particular about the judgment delivered on 24 June 2014 by the French Conseil d’État which declared lawful the decision taken by the doctor treating Vincent Lambert, to discontinue his artificial nutrition and hydration. |
116 | Obligation on authorities to provide adequate protection against domestic violence | 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 first 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 first applicant and her children were therefore forced to move away from their friends and family and two of the children had to change schools. They complained that the authorities had failed to protect them adequately from domestic violence. |
803 | Right to a fair trial (Article 6 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1982 and lives in St Petersburg. 7. Since 2002 the applicant has suffered from a mental disorder. On several occasions he was placed in Hospital no. 6 in St Petersburg for in ‑ patient psychiatric treatment. In 2003 he obtained the status of a disabled person. The applicant lived with his mother; he did not work and received a disability pension. 8. In May 2003 the applicant ’ s grandmother died. The applicant inherited a flat from her in St Petersburg and a house with a plot of land in the Leningrad region. 9. On 27 July 2004 the applicant was placed in Hospital no. 6 for in ‑ patient treatment. A. Incapacitation proceedings 10. On 3 August 2004 the applicant ’ s mother lodged an application with the Vasileostrovskiy District Court of St Petersburg, seeking to deprive the applicant of legal capacity. She claimed that her son was inert and passive, that he rarely left the house, that he spent his days sitting on a couch, and that sometimes he behaved aggressively. She indicated that her son had recently inherited property from his grandmother; however, he had not taken the necessary steps to register his property rights. This indicated that he was incapable of leading an independent social life and thus needed a guardian. It appears that the applicant was not formally notified about the proceedings that had been brought in respect of him. 11. On 10 August 2004 the judge invited the applicant and his mother to court to discuss the case. However, there is no evidence that the invitation ever reached the applicant. The court also requested the applicant ’ s medical records from Hospital no. 6. 12. On 12 October 2004 the judge of the Vasileostrovskiy District Court of St Petersburg commissioned a psychiatric expert examination of the applicant ’ s mental health. The examination was assigned to the doctors of Hospital no. 6, where the applicant had been undergoing treatment. The judge formulated two questions to the doctors: firstly, whether the applicant suffered from any mental illness; and, secondly, whether he was able to understand his actions and control them. 13. On 12 November 2004 an expert team from Hospital no. 6 examined the applicant and his medical records. The report prepared by the expert team may be summarised as follows. After graduating from college, the applicant worked for a short time as an interpreter. However, some time later he became aggressive, unsympathetic and secluded, and prone to empty philosophising. He abandoned his job, started attending religious meetings and visiting Buddhist shrines, lost most of his friends, neglected his personal hygiene and became very negative towards his relatives. He suffered from anorexia and was hospitalised because of this. 14. In August 2002 he was placed in a psychiatric hospital for the first time with a diagnosis of “simple schizophrenia”. In April 2003 he was discharged from hospital; however, later that same month he was admitted again because of his aggressive behaviour towards his mother. In the following months he was placed in hospital two further times. In April 2004 he was discharged. However, he “continued to live in an antisocial way ”. He did not work, loitered in the flat, prohibited his mother from preparing him food or from leaving the flat or moving around, and threatened her. She was so afraid of the applicant that she once spent a night at friends of hers and had to complain to the police about her son. 15. The final part of the report concerned the applicant ’ s mental condition at the time of his examination. The doctors noted that the applicant ’ s social maladjustment and autism had worsened. They noted, inter alia, that “the applicant did not understand why he had been subjected to a [forensic] psychiatric examination”. The doctors further stated that the applicant ’ s “intellectual and mnemonic abilities were without any impairment”. However, his behaviour was characterised by several typical features of schizophrenia, such as “ formality of contacts, structural thought disorder ..., lack of judgment, emotional emasculation, coldness, reduced energy potential ”. The expert team concluded that the applicant was suffering from “simple schizophrenia with a manifest emotional and volitional defect” and that he could not understand his actions or control them. 16. On 28 December 2004 Judge A. of the Vasileostrovskiy District Court held a hearing on the merits of the case. The applicant was neither notified nor present at that hearing. The applicant ’ s mother was notified but did not appear. She informed the court that she maintained her initial request and asked the court to examine the case in her absence. The case was examined in the presence of the district prosecutor. A representative of Hospital no. 6 was also present. The representative of the hospital, described in the judgment as “an interested party”, asked the court to declare the applicant incapable. It appears that the prosecutor did not make any remarks on the substance of the case. The hearing lasted ten minutes. As a result, the judge declared the applicant legally incapable, referring to the experts ’ findings. 17. Since no appeal was lodged against the judgment of 28 December 2004 within the ten-day time-limit provided by law, the judgment became final on 11 January 2005. 18. On 14 January 2005 the applicant ’ s mother received a copy of the full text of the judgment of 28 December 2004. Subsequently, on an unspecified date, she was appointed the applicant ’ s guardian and was authorised by law to act on his behalf in all matters. 19. According to the applicant, he was not sent a copy of the judgment and only became aware of its existence by chance in November 2005, when he found a copy of the judgment among his mother ’ s papers at home. B. The first meeting with the lawyer 20. On 2 November 2005 the applicant contacted Mr Bartenev, a lawyer with the Mental Disability Advocacy Centre (“the lawyer”), and explained the situation. The applicant and the lawyer met for two hours and discussed the case. According to the lawyer, who holds a degree in medicine from the Petrozavodsk State University, during the meeting the applicant was in an adequate state of mind and fully able to understand complex legal issues and give relevant instructions. On the same day the lawyer helped the applicant draft a request to restore the time-limits for lodging an appeal against the judgment of 28 December 2004. C. Confinement in the psychiatric hospital in 2005 21. On 4 November 2005 the applicant was placed in Hospital no. 6. Admission to hospital was requested by the applicant ’ s mother, as his guardian; in terms of domestic law it was therefore voluntary and did not require approval by a court (see paragraph 56 below). The applicant claimed, however, that he had been confined to hospital against his will. 22. On 9, 10, 12 and 15 November 2005 the lawyer attempted to meet his client in hospital. The applicant, in turn, requested the hospital administration to allow him to see his lawyer in private. However, Dr Sh., the Director of the hospital, refused permission. He referred to the applicant ’ s mental condition and the fact that the applicant was legally incapable and therefore could only act through his guardian. 23. On 18 November 2005 the lawyer had a telephone conversation with the applicant. Following that conversation the applicant signed a form authorising the lawyer to lodge an application with the European Court of Human Rights in connection with the events described above. That form was then transmitted to the lawyer through a relative of another patient in Hospital no. 6. 24. The lawyer reiterated his request for a meeting. He specified that he was representing the applicant before the European Court and enclosed a copy of the power of attorney. However, the hospital administration refused permission on the ground that the applicant did not have legal capacity. The applicant ’ s guardian also refused to take any action on the applicant ’ s behalf. 25. From December 2005 the applicant was prohibited from having any contact with the outside world; he was not allowed to keep any writing equipment or use a telephone. The applicant ’ s lawyer produced a written statement by Mr S., another former patient in Hospital no. 6. Mr S. met the applicant in January 200 6 while Mr S. was in the hospital in connection with attempted suicide. Mr S. and the applicant shared the same room. In the words of Mr S., the applicant was someone friendly and quiet. However, he was treated with strong medicines, such as Haloperidol and Chlorpromazine. The hospital staff prevented him from meeting his lawyer or his friends. He was not allowed to write letters; his diary was confiscated. According to the applicant, he once attempted to escape from the hospital, only to be captured by the staff members who secured him to his bunk bed. D. Applications for release 26. On 1 December 2005 the lawyer complained to the guardianship office of Municipal District no. 11 of St Petersburg about the actions of the applicant ’ s official guardian, namely his mother. He claimed that the applicant had been placed in the hospital against his will and without medical necessity. The lawyer also complained that the hospital administration was preventing him from meeting the applicant. 27. On 2 December 2005 the applicant himself wrote a letter in similar terms to the district prosecutor. He indicated, in particular, that he was prevented from meeting his lawyer, that his hospitalisation had not been voluntary, and that his mother had placed him in the hospital in order to appropriate his flat. 28. On 7 December 2005 the applicant wrote a letter to the Chief Doctor of Hospital no. 6, asking for his immediate discharge. He claimed that he needed some specialist dental assistance which could not be provided within the psychiatric hospital. In the following weeks, the applicant and his lawyer wrote several letters to the guardianship authority, district prosecutor, public health authority, and so on, calling for the applicant ’ s immediate discharge from the psychiatric hospital. 29. On 14 December 2005 the district prosecutor advised the lawyer that the applicant had been placed in the hospital at the request of his official guardian, and that all questions related to his eventual release should be decided by her. 30. On 16 January 2006 the guardianship office informed the lawyer that the actions of the applicant ’ s guardian had been lawful. According to the guardianship office, on 12 January 2006 the applicant was examined by a dentist. As follows from this letter, the representatives of the guardianship office did not meet the applicant and relied solely on information obtained from the hospital and from his guardian – the applicant ’ s mother. E. Request under Rule 39 of the Rules of Court 31. In a letter of 10 December 2005, the lawyer requested the Court to indicate to the Government interim measures under Rule 39 of the Rules of Court. In particular, he requested the Court to oblige the Russian authorities to grant him access to the applicant with a view to assisting him in the proceedings and preparing his application to the European Court. 32. On 15 December 2005 the President of the Chamber decided not to take any decision under Rule 39 until more information was received. The parties were invited to produce additional information and comments regarding the subject matter of the case. 33. Based on the information received from the parties, on 6 March 2006 the President of the Chamber decided to indicate to the Government, under Rule 39 of the Rules of Court, interim measures desirable in the interests of the proper conduct of the proceedings before the Court. These measures were as follows: the Government was directed to organise, by appropriate means, a meeting between the applicant and his lawyer. That meeting could take place in the presence of the personnel of the hospital where the applicant was detained, but outside their hearing. The lawyer was to be provided with the necessary time and facilities to consult with the applicant and help him in preparing the application before the European Court. The Government was also requested not to prevent the lawyer from having such a meeting with his client at regular intervals in future. The lawyer, in turn, was obliged to be cooperative and comply with reasonable requirements of hospital regulations. 34. However, the applicant ’ s lawyer was not given access to the applicant. The Chief Doctor of Hospital no. 6 informed the lawyer that he did not regard the Court ’ s decision on interim measures as binding. Furthermore, the applicant ’ s mother objected to the meeting between the applicant and the lawyer. 35. The applicant ’ s lawyer challenged that refusal before the St Petersburg Smolninskiy District Court, referring to the interim measure indicated by the European Court of Human Rights. On 28 March 2006 the court upheld his claim, declaring the ban on meetings between the applicant and his lawyer as unlawful. 36. On 30 March 2006 the former Representative of the Russian Federation at the European Court of Human Rights, Mr P. Laptev, wrote a letter to the President of the Vasileostrovskiy District Court of St Petersburg, informing him of the interim measures applied by the Court in the present case. 37. On 6 April 2006 the Vasileostrovskiy District Court examined, on the applicant ’ s motion, the Court ’ s request under Rule 39 of the Rules of Court and held that the lawyer should be allowed to meet the applicant. 38. The hospital and the applicant ’ s mother appealed against that decision. On 26 April 2006 the St Petersburg City Court examined their appeal and quashed the lower court ’ s judgment of 6 April 2006. The City Court held, in particular, that the District Court had no competence to examine the request lodged by the Representative of the Russian Federation. The City Court further noted that the applicant ’ s official guardian – his mother – had not applied to the court with any requests of this kind. The City Court finally held as follows: “ ... The applicant ’ s complaint [to the European Court ] was lodged against the Russian Federation ... The request by the European Court was addressed to the authorities of the Russian Federation. The Russian Federation as a special subject of international relations enjoys immunity from foreign jurisdiction; it is not bound by coercive measures applied by foreign courts and cannot be subjected to such measures ... without its consent. The [domestic] courts have no right to undertake on behalf of the Russian Federation an obligation to comply with the preliminary measures ... This can be decided by the executive ... by way of an administrative decision.” 39. On 16 May 2006 the St Petersburg City Court examined the appeal against the judgment of 28 March 2006 lodged by the Chief Doctor of Hospital no. 6. The City Court held that “under Rule 34 of the Rules of Court, the authority of an advocate [representing the applicant before the European Court ] should be formalised in accordance with the legislation of the home country”. The City Court further held that under Russian law the lawyer could not act on behalf of the client in the absence of an agreement between them. However, no such agreement had been concluded between Mr Bartenev (the lawyer) and the applicant ’ s mother – the person who had the right to act on behalf of the applicant in all legal transactions. As a result, the City Court concluded that the lawyer had no authority to act on behalf of the applicant, and his complaint should be dismissed. The judgment of 28 March 2006 by the Smolninskiy District Court was thus reversed. 40. On the same day the applicant was discharged from hospital and met with his lawyer. F. Appeals against the judgment of 2 8 December 2004 41. On 20 November 2005 the applicant ’ s lawyer brought an appeal against the decision of 28 December 2004. He also requested the court to extend the time-limit for lodging the appeal, claiming that the applicant had not been aware of the proceedings in which he had been declared incapable. The appeal was lodged through the registry of the Vasileostrovskiy District Court. 42. On 22 December 2005 Judge A. of the Vasileostrovskiy District Court returned the appeal to the applicant ’ s lawyer without examination. She indicated that the applicant had no legal capacity to act and, therefore, could only lodge an appeal or any other request through his guardian. 43. On 23 May 2006, after the applicant ’ s discharge from the psychiatric hospital, the applicant ’ s lawyer appealed against the decision of 22 December 2005. By a ruling of 5 July 2006, the St Petersburg City Court upheld the decision of 22 December 2005. The City Court held that the Code of Civil Procedure did not allow for the lodging of applications for restoration of procedural terms by legally incapable persons. 44. In the following months the applicant ’ s lawyer introduced two appeals for supervisory review, but to no avail. 45. According to the applicant ’ s lawyer, in 2007 the applicant was admitted to Hospital no. 6 again, at the request of his mother. | The applicant has a history of mental illness and was declared officially disabled in 2003. Following a request lodged by his mother, the Russian courts declared him legally incapable in December 2004. His mother was subsequently appointed his guardian and, in November 2005, she admitted him to a psychiatric hospital. The applicant alleged in particular that he had been deprived of his legal capacity without his knowledge. |
243 | The definition of idem | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and is currently detained in Lannemezan Prison. A. Background to the case 6. The applicant was a member of the Islamic Salvation Front ( Front Islamique du Salut – “the FIS ” ) and left Algeria prior to the dissolution of that political group by a judgment of the Algiers Administrative Court dated 19 March 1992. After spending some time in Pakistan he entered the United Kingdom in January 1993 using the false name of Elias Serbis. On 26 February 1993 he applied for political asylum in that country, claiming to have been forced to leave Algeria because of his membership of the FIS. His application was refused on 10 August 1994. 7. On 25 July, 17 and 26 August, 3, 4 and 7 September and 6 and 17 October 1995 eight terrorist attacks were carried out in France. 8. Although no organisation explicitly claimed responsibility, certain factors, such as the existence of virulent press statements against France and the mode of operation of the attacks, pointed to the involvement of the Armed Islamic Group ( Groupement Islamique Armé – “the GIA ” ). 9. In the course of the judicial investigation aimed at identifying the perpetrators, telephone tapping operations carried out on public payphones used by a certain B.B. led to a number of persons being arrested and to the search being focused on the United Kingdom and an individual named Elyes (also known as Elyesse or Eliass ). The sources of these names or pseudonyms were a telephone conversation of 1 November concerning Elyes and the Western Union bank, a search of B.B. ’ s home during which a document was found showing that a sum of money had been transferred to B.B. from that bank on 16 October 1995, and the decoding of a list of telephone numbers found on B.B. ’ s person and at his home and featuring three numbers in England preceded by the name “ Elyesse ” or “ Eliass ”. B.B., who was arrested on 1 November 1995, also directly implicated “ Ylies ”, claiming that he had funded the campaign of attacks from London and had been kept informed of their progress. 10. On 3 November 1995 the French National Surveillance Directorate informed the investigators that the individual known as “ Elyes, Ilyes, Lyes, Iliesse, Eliass or Elyasse ”, whom B.B. had identified as having funded the attacks, might be the applicant. The latter, who was living in London, was suspected of being one of the leaders of the GIA in the United Kingdom, in particular because of his involvement with the publication Al Ansar (or Al Ansaar ) which the GIA used as a mouthpiece abroad. 11. The investigations carried out in London established that the applicant had a home there and had a set of keys to a second London address, which served as the offices of the magazine Al Ansar and as a meeting place for all the persons involved in publishing and distributing it. On the premises the investigators found, among other items, the following: contracts for three mobile phones in the names of three of the applicants ’ acquaintances and corresponding to the numbers identified at the home of B.B., who had rung the numbers before and after each attack; a receipt for the rental of a post - office box in the name of Fares ELIASS with the applicant ’ s fingerprints on it; letters and statements from the FIS; a statement saying that only the GIA was entitled to conduct the jihad; a letter from the GIA to the French President calling on him to convert to Islam; a letter commenting on the attacks carried out in France; copies of press articles on anti-terrorism mentioning the names of judges and members of the intelligence service; a piece of paper on which “ Notre Dame 33 ‑ 1 ‑ 43 ‑ 54-46-12 ” was written, corresponding to the telephone number of the Western Union branch at 4 rue du Cloître Notre Dame in Paris; and a receipt dated 21 July 1995 issued by a branch of Thomas Cook in London for a sum of 5,000 pounds sterling (GBP). 12. The applicant was arrested and placed in police custody from 4 to 7 November 1995 under the Prevention of Terrorism Act. 13. On 7 November 1995 the applicant was detained pending extradition under the terms of an international arrest warrant issued on the same day in connection with the investigation into the attack carried out on 6 October 1995 close to the Maison Blanche metro station. 14. Three further international arrest warrants were issued concerning the applicant: on 24 November 1995 in relation to the attack of 17 October at the Gare d ’ Orsay station; on 29 January 1996 in the case concerning a conspiracy to prepare terrorist attacks; and on 16 January 2001 in relation to the attack carried out on 25 July 1995 at the Saint-Michel suburban rail station. 15. The applicant lodged habeas corpus applications which were dismissed in June 1997 and in 2001. On 8 October 2001 the British Home Secretary ordered his removal to France, but that order was quashed by the High Court, Queen ’ s Bench Division, on 27 June 2002. 16. On 6 April 2005 the Home Secretary signed a fresh order for the applicant ’ s extradition in the light of the assurances provided by the French authorities concerning the safeguards of a fair and impartial trial in France. On 14 October 2005 the High Court dismissed an appeal by the applicant. 17. On 1 December 2005 the applicant was handed over to the French authorities and was remanded in custody the following day. B. The proceedings before the criminal courts ( procédure correctionnelle ) 18. By an order of 5 February 1999 the applicant was committed for trial in the Paris Criminal Court for involvement – in France and in England, from an unspecified date until 4 November 1995 – in an association or conspiracy formed with a view to the preparation, in the form of one or more material acts, of one of the terrorist acts in question. The investigating judge stated, in particular, as follows : “ - [the applicant] was responsible for distributing the journal Al Ansar, a propaganda outlet of the Armed Islamic Group; - ... was involved on this account in disseminating propaganda for that organisation, which is banned in France; - ... was the main contact person in Europe for [D.Z.], alias Abou Abderhamane Amine, in organising and carrying out the GIA ’ s activities in Europe; - ... was tasked with sending money to GIA members still in France to enable them to fund and carry out attacks; - ... was in contact with numerous persons involved in and convicted of criminal conspiracy with a view to a terrorist enterprise .” 19. In a judgment of 29 March 2006 accompanied by over thirty pages of reasoning, the Criminal Court first of all set out the facts with regard to the “political/religious background ”, the emergence of the FIS and then the GIA, the “background to the attacks” in 1995 – which it listed and described as attributable in all likelihood to the GIA – and the “context surrounding Rachid Ramda ”. 20. Ruling on the criminal charges, the court began by examining the case against the applicant. It found that it could be established with certainty, on the basis of precise and concurring physical evidence, that the applicant had indeed used various false names and aliases which had come up in the course of the investigations, a fact the court described as “beyond doubt and indisputable”. With regard to the GIA ’ s funding the court, having noted the prosecution ’ s claims that the applicant had funded the GIA groups which carried out the attacks in France during the second half of 1995, examined the factual evidence in the case file at length and in detail. It observed in particular that, according to one witness who was a GIA member, the organisation ’ s groups had different specialisations depending on their location, with the London group being responsible for sending funds. The court further noted that the applicant had transferred GBP 5,000 on 16 October 1995, two days before the attack of 17 October 1995. This was established by the statements of the British police officers tasked with keeping the applicant under surveillance and of the staff of the Western Union branch where the transfer had been made, and also by the discovery of the applicant ’ s fingerprints on the transfer slip kept by the Western Union branch. The court also observed that one of the perpetrators of the attacks, B.B., had stated that the money used in preparing the various attacks had always been supplied by the applicant from London. The court inferred that the facts as a whole “demonstrate[d] that Rachid Ramda was indeed responsible for funding terrorist groups on French soil”. Furthermore, in response to the public prosecutor ’ s submissions concerning the applicant ’ s role in disseminating GIA propaganda, the first-instance court also considered the various items of factual evidence before it, and in particular the wealth of correspondence and propaganda documents relating to the GIA ’ s views and actions that had been found during the searches of the various premises used by the applicant, as well as the statements by a GIA member confirming the applicant ’ s role as a member of the team publishing the magazine Al Ansar, which was the GIA outlet used in particular to claim responsibility for attacks. It also noted the presence at the applicant ’ s home of pamphlets promoting terrorism and killing with specific reference to France. The court concluded that the applicant had played a part in disseminating GIA propaganda and ideas. 21. Turning next to the applicant ’ s involvement in a criminal conspiracy in connection with a terrorist enterprise, the court found this offence to have been made out, as the investigation had shown that several groups located in the Lyons area, in Paris and in Lille had been behind the 1995 attacks. All the members had either been directly involved or had played an indirect role by aiding and abetting and providing resources, and all of them were either known activists or claimed to be activists within the GIA. The court found that the applicant ’ s contacts with the various members of these networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the court set out, among other findings, the facts showing the existence of links to eight members of three groups forming a support network for the GIA. 22. Accordingly, the Criminal Court found the applicant guilty of criminal conspiracy in connection with a terrorist enterprise, on the basis of Articles 450-1 and 421-1 of the Criminal Code. It sentenced him to ten years ’ imprisonment and ordered his permanent exclusion from French territory. The court cited as reasons for imposing the prison sentence the fact that “by providing funding and issuing propaganda on behalf of the GIA, Rachid RAMDA not only enabled the attacks to be carried out but acted as a propagandist, potentially attracting new members to strengthen the networks spread over several European countries”. It further cited the fact that “his double talk reveal[ ed ] both his bad faith and his complete lack of regret or remorse”. The court awarded one euro (EUR) in damages to the association SOS Attentats, which had joined the proceedings as a civil party. 23. In a final judgment of 18 December 2006 the Paris Court of Appeal upheld that judgment. While referring expressly to the statement of facts as established in the judgment, it devoted some thirty pages to analysing the charges against the applicant, giving reasons. First of all, the Court of Appeal gave further details concerning the evolution and operation of the GIA. It also specified that the case before it concerned “the series of attacks carried out in France in the summer and autumn of 1995”, and that “the facts of the case at hand concern [ ed ] the preparation of the attacks and the actions enabling the attacks, which started in France in July 1995, to be carried out”. The Court of Appeal went on to list the eight attacks carried out between 25 July and 17 October 1995. With particular reference to the evidence of the existence of an information hub based in London which the applicant had allegedly managed, it found this to be established on the basis of the telephone calls made on the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris ‑ Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean-Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack. 24. The Court of Appeal also emphasised the existence of several items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities. These included the fact that the applicant had sent funds from England on 16 October 1995 under the false name of Philippe Hervier, which had been received by B.B. at the Rivoli branch of the Rivaud bank under the false name of A. Benabbas, and which matched an entry in A.T. ’ s accounts book marked “36,800 francs, Lyseo ” and B.B. ’ s statements; the payment by the applicant of GBP 5,000 and 50,000 French francs (FRF), as shown by an entry in A.T. ’ s accounts book which mentioned funds sent by “ Walid ”, a false name used by the applicant or the first name of one of his acquaintances who could be contacted in order to reach him; statements from several individuals concerning services offered in return for payment, fundraising, the sending of substantial sums of money, a transfer of EUR 4,000 to M. and the existence of a receipt for GBP 100. 25. Lastly, the Court of Appeal noted a series of facts demonstrating, firstly, that the applicant had been “the main contact person ... in organising and carrying out the GIA ’ s activities in Europe”, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London ( press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been “the GIA ’ s main propaganda agent outside Algeria”, with “his role on the magazine Al Ansaar ” (particularly in the light of documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post - office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of “the London cell which revolved around [him and which] also served as a rallying point for young recruits passing through”, as demonstrated by the personal histories of four of them; and fourthly, that he had been a leader with “a strategic role in the GIA ’ s external organisation”, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide. 26. The Court of Appeal echoed the reasons given by the Criminal Court and added that there was sufficient evidence in the case to demonstrate that the applicant had been contacted regularly in order to be kept informed of events, that he had been responsible for funding GIA operations in Europe, that he had acted as a conduit for the GIA ’ s military command and as a propaganda agent for that organisation, especially through the magazine Al Ansar, that he had given shelter to fugitives passing through London and had sometimes been called upon to coordinate the GIA ’ s external activities. The Court of Appeal therefore concluded as follows: “The Court of Appeal, like the first-instance court, therefore finds it established that the GIA created ‘ an external structure ’ in Europe designed to enable it to pursue its goal of overthrowing the Algerian regime, including by attacking institutions and people in countries that supported or were deemed to support that regime, by setting up networks in Belgium and France in particular which provided support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens (accommodation and false identity papers) to fighters who were fleeing the maquis or had arrived to carry out attacks, organised and coordinated by a cell in London in charge of fundraising and using funds acquired lawfully or unlawfully. ... [ the applicant ] knowingly played a decisive role, by means of the material acts referred to by the Criminal Court and by this court above, in the achievement of the GIA ’ s goal, participating from London in the implementation of the group ’ s external structure, and played a vital role within the organisation whose aim was to prepare, assist in and carry out the attacks which took place.” 27. In a judgment of 14 March 2007 the Court of Cassation dismissed an appeal on points of law by the applicant. C. The proceedings before the assize courts ( procédure criminelle ) 28. In a judgment of 13 February 2001 the Investigation Division of the Paris Court of Appeal indicted B.B., S.A.B. and the applicant for the attack of 17 October 1995 and committed them for trial before the Paris special Assize Court. The applicant was charged with aiding and abetting the crimes of attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection principally or incidentally with a terrorist enterprise, and with the related offence of a breach of the explosives legislation in connection with a terrorist enterprise. 29. On 3 August and 27 November 2001 the Investigation Division of the Paris Court of Appeal upheld the orders issued by the Paris investigating judge on 27 April (concerning the attack of 25 July 1995) and 13 July 2001 (concerning the attack of 6 October 1995) for the indictment of the applicant and B.B. and their committal for trial before the special Assize Court. The applicant faced trial for aiding and abetting the crimes of murder, attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing death, mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection with a terrorist enterprise, and for the related offence of a breach of the explosives legislation in connection with a terrorist enterprise. 30. These three judgments of the Investigation Division specified that the applicant had aided and abetted by: transmitting instructions from the GIA ordering attacks with explosives and providing B.B. with instructions on manufacturing; relaying to the GIA leadership operational information provided by the perpetrators of the attacks; providing the perpetrators with the funds needed not just to manufacture the explosive devices but also to make all the logistical arrangements for preparing and carrying out the attacks. The judgments of 13 February and 3 August 2001 added the fact that the funds had also been intended, if necessary, to enable the perpetrators based in France to flee. 31. In these judgments the judges noted in particular the following facts in relation to the applicant. The three mobile phones used by the applicant had received calls from B.B. on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1885 at 3.50 p.m. (Paris time) for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer of FRF 38,000 from an English branch of Western Union, and the checks carried out established that the applicant had gone into a Londis shop in Wembley containing a Western Union office at 2.34 p.m. on 16 October 1995 and had re-emerged at 3.26 p.m. (London time); the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil - Essonnes used by A.T. written on the back, and an entry had been made in the credit column of B.B. ’ s accounts for the sum of “5,000 pounds sterling from [W.], converted at a rate of 7.5% ”; a sum of GBP 6,945 had been sent on 20 July 1995; between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint ‑ Michel suburban rail station; and a letter from British Telecom had been found, addressed to “ Walid ” at 122 Hamlet Gardens, the applicant ’ s address. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest. 32. In its judgment of 13 February 2001 concerning the attack of 17 October 1995 the Investigation Division observed in particular that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995. It compared these calls with the statements made by B.B. and a further accomplice, who had been planning an attack on Lille city market, according to which they had reported to the applicant on preparations for the operations, and in particular for the attack of 17 October 1995. The Investigation Division also noted that the applicant had made a transfer of FRF 36,800 from London the day before that attack – as shown by the fact that his fingerprints had been found on the transfer slip in the Western Union office in London – which had been received by B.B. in Paris on the same day. The link between that transfer and the attack of 17 October 1995 had also been established by B.B. ’ s statements and by a call made to the applicant ’ s mobile phone the same day, after the money had been received. 33. In its judgment of 3 August 2001 relating more specifically to the attack of 2 5 July 1995, the Investigation Division stressed that the applicant ’ s English mobile phone had been called two days before that attack from a public payphone in Paris close to B.B. ’ s home from which other calls had been made, including a call to a mobile phone belonging to a member of the French GIA network, made one minute before the applicant was called. Furthermore, the day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Above all, the Investigation Division noted that the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995. 34. Lastly, in its judgment of 27 November 2001 the Investigation Division also noted that it was clear from these different elements that the applicant had sent funds to the perpetrators of the attacks, not just in relation to the campaign of attacks as a whole but also for use directly in carrying out the attack of 6 October 1995. With regard to the latter, it noted that the instructions issued by the GIA concerning the campaigns, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had also funded all the operational arrangements put in place in France in order to ensure the success of the attacks, and that the recipients had been required to report to him on how the money had been used. A number of telephone calls had established that the applicant had been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995, which had been followed by a telephone call on 8 October 1995 telling the applicant that everything had gone well on 6 October. 35. On 26 October 2007 the Paris special Assize Court, composed of seven professional judges, found the applicant guilty as charged in connection with the three attacks. It sentenced him to life imprisonment with a minimum term of twenty-two years. The applicant appealed on 29 October 2007. 36. The appeal proceedings before the Paris special Assize Court, this time composed of nine professional judges, took place from 16 September to 13 October 2009. One hundred and ninety-six individuals joined the proceedings as civil parties, as did the RATP (the Paris public-transport operator), the SNCF (the French national rail company), the Guarantee Fund for victims of terrorist acts and other crimes, the Government Law Officer and the association SOS Attentats. 37. At the hearing of 16 September 2009 counsel for the applicant made submissions requesting the termination of the proceedings and a finding that the prosecution was null and void, on the basis of the ne bis in idem principle. Citing Article 4 of Protocol No. 7 and the judgment in Sergey Zolotukhin v. Russia, delivered by the Grand Chamber of the Court on 10 February 2009, they argued that the material acts which the Assize Court was called on to examine were the same as those of which the applicant had previously been convicted by the Paris Court of Appeal in its final judgment of 18 December 2006. In counsel ’ s view, the material acts alleged in the Assize Court proceedings, namely the transfer of funds to the perpetrators of the attacks, the transmission of instructions to the same perpetrators, and the monitoring of the preparation and carrying -out of the attacks, had also been alleged in the Criminal Court proceedings. 38. In an interlocutory judgment of 17 September 2009 the special Assize Court dismissed the objection regarding a breach of the ne bis in idem principle, finding as follows: “Although Rachid RAMDA ’ s defence counsel correctly points out that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘ offence ’ in so far as it arises from identical facts or facts which are substantially the same, the following factors need to be taken into consideration in the present case: - The facts on which the criminal courts based their finding that Rachid RAMDA was guilty, while they related to criminal acts dealt with in the current set of proceedings, were by no means confined to them. In finding the offence of criminal conspiracy to be made out – a separate offence that is provided for and punishable under Article 450-1 of the Criminal Code – the courts considered all the elements apt to substantiate the accused ’ s involvement in the conspiracy, which was aimed at organising, developing and ensuring the continuation of a movement that was bent on imposing its cause, in particular by using clandestine methods and material and intellectual resources (recruitment of and regular contact with activists, dissemination of information on the GIA ’ s activities and views, fundraising, seeking donations of weapons and various items of equipment, etc.), without necessarily pursuing the sole objective of carrying out the attacks that are the subject of the proceedings. - The facts to be considered by this court differ substantially from the earlier ones in that they relate to criminal conduct aimed at the achievement of one-off objectives which were determined with precision and were not inextricably linked, and which were driven by a specific motivation consisting in particular in providing others, in full knowledge of the situation, with the means of deliberately harming human life or individuals ’ physical or mental integrity by the use of explosives. - In these circumstances the finding that Rachid RAMDA was guilty and his conviction by the Paris Court of Appeal cannot lead the Assize Court to find that his prosecution has lapsed and to declare the criminal proceedings against him null and void. - It is thus the task of the Assize Court, on conclusion of the proceedings and in the light thereof, to rule, by answering the questions raised before it, as to whether or not Rachid RAMDA is guilty of aiding and abetting as charged ... ” 39. In an interlocutory judgment of 24 September 2009 the special Assize Court of Appeal deferred its decision on a request for further information and eventually rejected the request in a further interlocutory judgment of 8 October 2009. 40. Sixty-three questions concerning the applicant alone were put to the special Assize Court of Appeal. Twenty-six related to the circumstances surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The questions gave precise details of the various alleged acts and where and when they had been committed, and listed the names of dozens of victims of killings and attempted killings, mutilation or permanent disability, injuries resulting in unfitness for work of up to eight days or more, and victims of damage to their property. The answer to sixty-one of the questions was “yes ”, by a majority (some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “ devoid of purpose ”. Besides details regarding the places and dates concerned in each instance, as well as the indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The parties did not comment on these questions. 41. An affirmative answer was given to the questions whether the applicant had knowingly assisted in the manufacture or possession of explosive devices and in issuing instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and whether he had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995. 42. In a judgment of 13 October 2009 the special Assize Court of Appeal found the applicant guilty and sentenced him to life imprisonment with a minimum term of twenty-two years, and ordered his permanent exclusion from French territory. It adjourned the civil hearing for a later date. The applicant appealed on points of law. 43. On 15 June 2011 the Court of Cassation dismissed the applicant ’ s appeal on points of law. Regarding his ground of appeal to the effect that no reasons had been given for the finding of guilt, based in particular on Article 6 of the Convention, it found as follows: “Firstly, the impugned questions, which were put in accordance with the law, established in all aspects the acts of aiding and abetting of which Mr Ramda was found guilty. Secondly, the judgment convicting Mr Ramda included the answers which the judges comprising the special Assize Court of Appeal gave immediately after the oral proceedings, on the basis of their personal conviction and by a majority following a secret vote, to the questions concerning his guilt which were put to them in accordance with the operative provisions of the committal orders and were the subject of adversarial argument. Accordingly, and given that steps were taken to ensure the prior investigation of the charges contained in the indictment, the free exercise of the rights of the defence, and the public and adversarial nature of the proceedings, the requirements laid down by the statutory and Convention provisions relied on were satisfied. ” 44. As to the ground of appeal concerning a breach of the ne bis in idem principle on account of the applicant ’ s final conviction by the Paris Court of Appeal on 18 December 2006 on the basis of identical facts, the Court of Cassation held that criminal conspiracy was a separate offence from the crimes prepared or committed by its members and also from the offences characterised by certain material acts that embodied it. ... | The applicant, an Algerian national, was extradited from the United Kingdom to France on charges related to a series of terrorist attacks in 1995 in France. He was first tried and convicted by a criminal court (tribunal correctionnel) on charges concerning his participation in a group aimed at preparing terrorist attacks. He was subsequently tried and convicted by an assize court (cour d’assises) on charges of complicity to commit a series of particular crimes such as murder and attempted murder. He complained in particular about a violation of the ne bis in idem principle owing to his criminal conviction despite his previous final conviction by the ordinary criminal courts. |
959 | Risk of being sentenced to death | I. THE CIRCUMSTANCES OF THE CASE 9. The applicants were born in 1972, 1973, 1998 and 1999 respectively and are currently in Sweden. 10. They arrived in Sweden on 25 August 2002 and applied to the Migration Board ( Migrationsverket ) for asylum on the following day. The first applicant submitted that he was of Kurdish origin, a Sunnite Muslim, and had lived with his family and worked in Beirut (Lebanon) since 1995. He claimed that in December 1999 he and three of his brothers had been arrested by the Syrian security police and imprisoned in Aleppo (Syria) for nine months because the police wanted information about another brother who had absconded while performing military service in 1998. He further alleged that he had been tortured and ill-treated in prison and had only been released after being hospitalised as a result of the ill-treatment. After his release, he returned to Beirut to stay with his family. Between 2001 and 2002 he was arrested four times by the security police, questioned about his brother's whereabouts and beaten. However, on each occasion, he was released after a few days. In 2002 the applicants moved to Aleppo, where they remained until they left Syria in August 2002. The applicants stated that they had left Syria legally, flying from Damascus to Turkey and then on to Stockholm. They had travelled using their own passports but had destroyed them upon their arrival in Sweden. 11. On 27 June 2003 the Migration Board rejected the family's application for asylum and their request for residence permits and ordered their deportation to Syria. It noted, firstly, that the general situation of Kurds in Syria was not such as to satisfy the requirements for asylum since, inter alia, Kurds who were Syrian nationals had the same rights as all other citizens. Moreover, the majority of the population in Syria were Sunnite Muslims. The Migration Board then found that the applicants had not shown that they risked persecution if they were sent back to Syria. It observed that, except for the first occasion in 1999, the first applicant had been released shortly after each interrogation by the security police. Moreover, as the interrogations had concerned his brother and not himself, the Migration Board considered that he was not personally in need of protection. In this connection, it noted that the first applicant had not been able to explain why his brother had left the army or why the security police was so interested in him. The Migration Board also observed that the applicants had left Syria legally. 12. The applicants appealed to the Aliens Appeals Board ( Utlänningsnämnden ), relying on the same grounds as they had before the Migration Board and adding that Kurds were being persecuted and discriminated against in Syria. They also claimed that they had paid 6,000 United States dollars for false passports which they had subsequently discarded. Furthermore, the second applicant had been admitted to an emergency psychiatric clinic for three days in July 2003 owing to panic attacks. 13. On 16 September 2003 the Aliens Appeals Board dismissed the appeal on the same grounds as the Migration Board, stating that the new reasons advanced by the applicants did not alter the position. The deportation order was also upheld. 14. The applicants subsequently lodged a new application with the Aliens Appeals Board which was rejected on 27 November 2003. 15. Further, during the autumn of 2003, the District Court ( tingsrätten ) of Blekinge convicted the first applicant of threatening behaviour against his four-year-old daughter and a neighbour. It gave him a suspended sentence and made an order for his deportation from Sweden. However, he appealed to the Court of Appeal ( hovrätten ) of Skåne and Blekinge, which on 24 February 2004 upheld the conviction and the suspended sentence but quashed the deportation order as it did not consider that the offence in itself merited deportation. 16. On account of the District Court's decision on deportation, the police authorities had begun preparations to enforce it. In that connection, the Swedish embassy in Damascus ascertained that the applicants had left Damascus legally on 17 August 2002 using their own passports but had in fact travelled via Cyprus, not Turkey. 17. In January 2004 the family lodged a new application for asylum to the Aliens Appeals Board and requested a stay of execution of the deportation order. They referred to a judgment that had been delivered on 17 November 2003 by the Regional Court in Aleppo which stated that the first applicant had been convicted, in absentia, of complicity in a murder and sentenced to death pursuant to Article 535 § 1 of the Syrian Criminal Code. 18. On 9 January 2004 the Aliens Appeals Board granted a stay of execution of the deportation order against the applicants until further notice and requested them to submit an original of the judgment and other relevant documents in support of their application. 19. On 26 January 2004 the applicants submitted to the Aliens Appeals Board a certified copy of the judgment in which it was stated that the first applicant and his brother had, on several occasions, threatened their brother-in-law because they considered that he had ill-treated their sister and paid too small a dowry, thereby dishonouring their family. In November 1998 the first applicant's brother had shot the brother-in-law, after planning the murder with the first applicant, who had provided the weapon. The Syrian court, which noted that the two brothers had absconded, found them guilty of the charges and sentenced them to death. They were also ordered to pay 1,000,000 Syrian pounds to the victim's family and were deprived of their civil rights and all their assets were frozen. The first applicant was also charged with unlawfully possessing a military firearm, a charge which the Syrian court had instructed the military prosecutor to proceed with. Lastly, the court went on to state: “[T]his judgment has been delivered in the accused's absence. [It] can be reopened.” It would appear that the judgment has gained legal force. 20. The applicants also submitted some further documents concerning the proceedings in Syria, including a summons dated 10 August 2003 requiring the first applicant to present himself before the court within ten days, failing which he would forfeit his civil rights and the control of his assets. The first applicant claimed that he had not been involved in the murder as he had been in Beirut at the material time. He also explained that he had, in fact, spent nine months in custody in 1999-2000 on suspicion of complicity in the murder and had been released on bail on 9 September 2000. He insisted that he had not mentioned this before because it concerned the family's honour and his sister's humiliation. The applicant was represented by a lawyer in Syria whose contact details had been provided to the Aliens Appeals Board. 21. On 16 February 2004 the Aliens Appeals Board requested the Swedish embassy in Syria to verify whether the judgment was authentic and, if so, whether it was possible to appeal or to have the case reopened. They further enquired if a reprieve was possible and whether death sentences were normally carried out in Syria. 22. By a letter dated 14 March 2004, the Swedish embassy in Syria informed the Aliens Appeals Board that a local lawyer ( förtroendeadvokat ) they had engaged had confirmed that the judgment was authentic. He had also carried out research into the Syrian criminal law on sentences for murder and manslaughter, the results of which were attached to the embassy's letter. 23. The embassy provided the following information in their letter to the Aliens Appeals Board. According to the local lawyer it was probable ( sannolikt ) that the case would be retried in court once the accused were located and it would then be very likely ( troligt ) that new witnesses would be called and the entire case reheard. Further, the fact that a case was “honour related” was usually considered a mitigating factor leading to a lighter sentence. The embassy said that the lawyer had also stated that it was not unusual for the Syrian courts to impose the maximum sentence possible when an accused failed to appear for trial after being summoned to do so. It added that, according to their sources, it appeared that the accused had to be present in person in order to obtain a retrial. In this respect, the Syrian judicial system was marked by considerable ( betydande ) arbitrariness and the death sentence was carried out for serious crimes such as murder. However, every execution had to be approved by the President. The embassy had no reliable information about how frequently death sentences were enforced as they were normally carried out without any public scrutiny or accountability. However, the local lawyer had claimed that it was very rare for the death sentence to be imposed at all by the Syrian courts today. 24. On 4 March 2004, in response to the information provided by the embassy, the applicants initially noted that the first applicant was wanted in Syria under the judgment. They then observed that the local lawyer had only given his own opinion on the matter and on what he considered was likely to happen. However, there were no guarantees that the case would be reopened or that the outcome would be different. They also stated that it would now be very difficult for the first applicant to find any witnesses to testify on his behalf and that, since the murdered man's family was very wealthy, they would be able to bribe the prosecutor and witnesses and, for that matter, the judge. The first applicant alleged that the murdered man had not been his brother-in-law, contrary to what had been stated in the Syrian judgment (see paragraph 19 above), but that the man's family had relied on forged documents before the Syrian court, stating that the first applicant's sister had been married to him. Thus, the murder was considered to be of the most serious kind. Furthermore, the fact that the first applicant was of Kurdish origin would also expose him to discrimination by the court and possibly to a harsher sentence. The applicants argued that, in view of the fact that the Syrian legal system was arbitrary and corrupt, they had a well-founded fear that the first applicant would be executed if he were returned to Syria and that the family would thereby be destroyed. 25. On 7 April 2004 the Aliens Appeals Board, by two votes to one, rejected the applicants' request for asylum. The majority considered, on the basis of the local lawyer's research, that it had been established that, if the first applicant returned to Syria, the case against him would be reopened and he would receive a full retrial, at the end of which, if convicted, he would be given a sentence other than death, as the case was “honour related”. Under those circumstances, the majority found that the applicants did not have a well-founded fear and were thus not in need of protection. 26. The dissenting member of the Aliens Appeals Board considered that, having regard to all the facts of the case, the applicants did have a well-founded fear that the first applicant would be executed if returned to Syria and the family should therefore be granted residence permits in Sweden. 27. On 19 April 2004, following the Court's indication under Rule 39, the Migration Board granted a stay of execution of the deportation order until further notice. The stay is still in force. III. CAPITAL PUNISHMENT IN SYRIA 30. According to Article 535 of the Syrian Criminal Code, a person convicted of intentionally killing another person will be sentenced to capital punishment. 31. In its Concluding Observations on the third periodic report by Syria under Article 40 of the International Covenant on Civil and Political Rights (CCPR/CO/84/SYR, dated 9 August 2005), the United Nations Human Rights Committee expressed its concern about the nature and number of offences which carried the death penalty in Syria. It was further “deeply concerned at the de facto reinstitution of death sentences and executions in 2002” and noted that Syria had submitted insufficient information relating to the numbers of persons whose death sentences had been commuted, and the number of persons awaiting execution. 32. According to Amnesty International (Country Reports 2005: Syria), the Syrian authorities had, on 5 July 2004, announced that sixteen people had been executed in 2002 and eleven in 2003. Moreover, on 17 October 2004, it was reported that two persons had been executed in Aleppo, but no further details had been made public. | The applicants are a family of four Syrian nationals who had had their asylum applications refused in Sweden and deportation orders to be returned to Syria served on them. They complained that as the father in the family had been convicted in his absence of complicity in a murder and sentenced to death in Syria, he ran a real risk of being executed if returned there. |
717 | Boycott | 2. The first applicant union, the Norwegian Transport Workers’ Union (NTF), is a member of the Norwegian Confederation of Trade Unions (LO), the second applicant union. They were represented before the Court by Mr H. Angell, a lawyer practising in Oslo, assisted by Mr L. Nagelhus and Mr. H.P. Graver, advocates. 3. The Government were represented by Mr M. Emberland of the Attorney General’s Office (Civil Matters) as their Agent, assisted by Ms H. Ruus and L. Tvedt, advocates at the same office. 4. The facts of the case, as submitted by the parties, may be summarised as follows. Background 5. The applicant trade unions, NTF and LO, entered into a collective framework agreement with the Confederation of Norwegian Enterprise (Næringslivets hovedorganisasjon (“NHO”)), the largest employer organisation in Norway, and the Norwegian Logistics and Freight Association (NHO logistikk og transport), in respect of a fixed pay scheme for dockworkers at many of the major ports in Norway, including the port of Drammen ( Rammeavtale om fastlønnssystem for losse- og lastearbeidere “the Framework Agreement”). 6. The Framework Agreement was entered into in the 1970s and then renewed biannually. It secured for Norwegian dockworkers the benefits of ILO Convention No. 137 (see further below), including the right to permanent employment and better pay. It had provisions on pay and working hours, and also included the following clause (clause 2(1)): “For vessels of 50 tonnes dwt [deadweight tonnes] and more sailing from a Norwegian port to a foreign port or vice versa, the unloading and loading work shall be carried out by dockworkers ..., [s]save for all unloading and loading at [a] company’s own facilities, where the company’s own people are used for unloading and loading.” 7. In accordance with another clause (clause 3) of the Framework Agreement, an office for dock work was established in the port of Drammen (the Administration Office for Dock Work in Drammen ( Administrasjonskontoret for havnearbeid i Drammen (“the Administration Office”)). This was an entity which ran at cost and had a board of directors consisting of three representatives of users of the port and two representatives of dockworkers. Its purpose was to manage dockworkers and ensure that an appropriate number of such workers were affiliated with it. All permanently employed dockworkers in the Drammen port were thus employed by the Administration Office. The Framework Agreement applied from ship to quay and vice versa with the result that the handling of goods outside the port was unaffected by its requirements. 8. Holship Norge AS (“Holship”) was a wholly-owned Norwegian subsidiary of the Danish freight forwarding group Holship Holding A/S. Holship established itself in Norway in 1996 and was based in Drammen. It was not a member of NHO or the Norwegian Logistics and Freight Association and was not party to the Framework Agreement. Until 2013 Holship used the services of the Administration Office when the company needed loading or unloading services in the port of Drammen. In 2013 it employed four persons in the port who, in addition to performing other tasks as employees for Holship, carried out loading and unloading operations for their employer. 9. In a letter to Holship dated 10 April 2013, NTF demanded that a collective agreement be entered into and that Holship accept the Framework Agreement. Holship did not respond. 10. On 11 June 2013, following further letters and voluntary mediation proceedings at the office of the National Mediator of Norway ( Riksmekleren ), NTF sent a letter with a notice of boycott. Part of the letter reads as follows: “The Norwegian Transport Workers’ Union maintains its demand for a collective agreement and encloses the Framework Agreement as input for the negotiations. Among other things, the agreement means that Holship must book dockworkers from the Administration Office for dock work in Drammen. We emphasise that this applies to ships engaged in both coastal and international shipping. As is the case for the ordinary Framework Agreement in ports, the Framework Agreement with Holship will have to be supplemented by an adaptation agreement for the port of Drammen. The Norwegian Transport Workers’ Union emphasises at the same time that the union is also willing to negotiate reasonable solutions to ensure that the negative effects for other employees of meeting the Norwegian Transport Workers’ Union’s demand for a collective agreement will be kept to a minimum. Since Holship has rejected all demands for a collective agreement which have been made by the Norwegian Transport Workers’ Union, we reiterate our notification regarding a blockade in respect of calls by ships at the port of Drammen where Holship is involved in unloading and/or loading work. The purpose of the blockade is to secure a collective agreement [and] enshrine in a collective agreement the principles concerning priority of engagement set out in clause 2(1) of the Framework Agreement in relation to Holship’s unloading and loading activity in the port of Drammen. As regards the lawfulness of a blockade in such cases, reference is made to the Supreme Court’s decision in the port of Sola case; see Rt. 1997 page [334, 337].” proceedings before the drammen City Court 11. On 12 June 2013 NTF brought the case before the Drammen City Court ( tingrett ). In accordance with section 3 of the Boycott Act (see paragraph 60 below), it applied for an advance declaratory judgment that the announced boycott would not be unlawful. 12. On 19 March 2014 the Drammen City Court ruled that the announced boycott would be lawful. 13. In its judgment, the Drammen City Court found that there was no unlawful purpose ( rettsstridig formål ) behind giving notice of a boycott in order to compel an enterprise to enter into a collective agreement that would give dockworkers the protection which the Framework Agreement intended to provide, or to secure such an agreement. It stated that the matter did not concern an attempt to achieve a trade union organisation of employees, and the fact that there was a high degree of organisation in this regard was not a point in itself. As regards the dockworkers, each individual employee had a choice as to whether it was in his best interests to be a member of NTF. 14. Furthermore, the Drammen City Court noted that the Framework Agreement only specified priority of engagement, and that Holship was entitled to use its own employees to carry out the relevant work if the Administration Office did not have the personnel available. It observed, moreover, that the boycott could have implications for Holship and its staff, but stated that this would be a consequence of the conflicting interests at stake, and thus a matter not particular to boycotts – similarly, this would be the effect of a strike or a lockout, which were also recognised forms of industrial action. The Drammen City Court observed that Holship had chosen to take a risk in employing staff to do unloading and loading work in the port. 15. The Drammen City Court considered that the boycott would not harm important public interests. Instead, the court found that there were important public interests in loading and unloading work being carried out by competent personnel who were given continuous training. The point of the Framework Agreement had been to secure work for dockworkers for different forwarding companies, and to prevent unqualified labour from being used and casual workers from performing work on unbalanced terms. In that context, the Drammen City Court also noted that Norway had accepted the special position of dockworkers by ratifying ILO Convention No. 137 (see paragraph 70 below) and stated that the system in question constituted a long-standing customary practice. The Drammen City Court recognised that it was important to avoid a situation where a dominant position would distort competition and be an obstacle to freedom of establishment. However, neither of those consequences would be the result of safeguarding dockworkers’ rights in the manner intended by the Framework Agreement. 16. Moreover, in the Drammen City Court’s view, some weight should be given to the fact that the intention had also been to ensure the satisfactory handling of goods in ports, an intention that had perhaps not been particularly emphasised. In the Drammen City Court’s assessment, the Framework Agreement accordingly served public interests and created predictability for those who performed the work and for users of the port. proceedings before the borgarting High Court 17. Holship appealed against the Drammen City Court’s judgment, and on 8 September 2014 the Borgarting High Court ( lagmannsrett ) rendered a judgment in which it, like the Drammen City Court, concluded that the boycott would be lawful. 18. The Borgarting High Court stated that, in principle, there was no unlawful purpose behind using a boycott to secure a collective agreement. Furthermore, it referred to a judgment by the Supreme Court ( Høyesterett ) of 5 March 1997 in a case concerning a similar situation in the port of Sola, Stavanger ( Rt -1997-334), in which it had been stated that the Framework Agreement, with its provision in clause 2(1), was a generally recognised collective agreement established by tradition in ports. In that case, the Supreme Court had noted that the agreement had its background in the special conditions of dockworkers, who had originally been casual workers without security for work or pay. Furthermore, the Supreme Court had observed that the provision in clause 2(1) of the Framework Agreement had been regarded as part of the fulfilment of Norway’s obligations under ILO Convention No. 137, and it followed from Article 3 of that Convention that registered dockworkers should have priority of engagement for dock work (see paragraph 70 below). The Borgarting High Court could not see that any circumstances existed in the present case that could lead to a different outcome from that in the Supreme Court’s judgment of 1997, in which it had been concluded that the boycott in question in that case was lawful. 19. Furthermore, in response to an argument by Holship to the effect that its own dockworkers, who were also trade union members, would risk losing their work if the loading and unloading work was taken over by the Administration Office, since Holship would then have to terminate their employment contracts, the Borgarting High Court stated that it could not see that this situation was covered by the “breach of the law” scenario in the Boycott Act (see paragraph 60 below). Downsizing as a result of operational cutbacks would not necessarily constitute a breach of the law in relation to the person who was made redundant, since operational cutbacks could constitute reasonable grounds for dismissal. Moreover, the Borgarting High Court took note that NTF had repeatedly expressed its willingness to negotiate: “reasonable solutions to ensure that the negative effects for other employees of meeting the Norwegian Transport Workers’ Union’s demand for a collective agreement will be kept to a minimum”. This willingness to negotiate had also been reiterated during the appeal hearing. No such negotiations had taken place, but the Borgarting High Court assumed that they would take place in the event that a collective agreement (the Framework Agreement) was entered into. On this point, reference was made to the above judgment of the Supreme Court, in which a similar argument had been assessed and rejected. 20. Under the heading “closed shop”, the Borgarting High Court went on to state that freedom of association was enshrined in Article 11 of the Convention, and that it was undisputed between the parties before the Borgarting High Court that that freedom included the right to choose not to join organisations (“negative freedom of association”). However, the Borgarting High Court did not find that there was evidence to support Holship’s claim that NTF’s demand for a collective agreement would impinge on the negative freedom of association. Although the employees at the Administration Office were in fact members of the Dockworkers’ Union (an association that came under the Portworkers’ Union, which was a division under NTF) at the time, on the basis of the evidence presented to it, the Borgarting High Court concluded that the parties to the case were well aware that it was not permitted to require employees to be members of a union, and also pointed to witnesses’ testimony to illustrate that such membership had in fact not been required. 21. Before the Borgarting High Court, Holship had also argued that the Administration Office was, in reality, a temporary work agency that hired out labour contrary to provisions of domestic labour law. In response, the Borgarting High Court stated that the Administration Office had to be considered in the light of its special origin and distinctive objective; it had come about as a result of cooperation between social partners to secure the pay and working conditions of dockworkers, and the authorities had considered the Framework Agreement a fulfilment of Norway’s international obligations under ILO Convention No. 137. The court pointed out that Article 3 of the ILO Convention required member States to establish and maintain registers of dockworkers and stated that registered dockworkers should have priority of engagement for dock work (see paragraph 70 below). The Borgarting High Court therefore found that the distinctive activities of the Administration Office were not in conflict with general domestic regulations on the hiring of labour. 22. Nor did the Borgarting High Court find that the announced boycott would be unlawful in terms of contravening provisions of competition law because it would harm important public interests or have an unwarranted effect, or because the interests pursued through it would be incommensurate with the harm it would cause. As to that last point, the Borgarting High Court stated that a boycott would, by its very nature, have negative consequences for the affected parties. In the instant case, it could not see that the negative consequences for Holship would exceed what had to be expected in a situation of that kind. Creating difficulties for the company in respect of loading and unloading, and possible negative financial consequences, would be an important point of the boycott. 23. At the same time, the Borgarting High Court found that it was very important to the dockworkers that priority of engagement be maintained, in the absence of any agreement about an alternative way of organising dock work that would safeguard their need for a permanent and secure workplace. The Borgarting High Court stated that a boycott was the only form of industrial action at their disposal. 24. Furthermore, the Borgarting High Court found that the dockworkers’ interests in having their demand for a collective agreement accepted had to be weighed against the consequences for Holship’s employees. It had been stated before the Borgarting High Court that if Holship could not carry out its own loading and unloading work, two or three employees might have to be made redundant. However, in the Borgarting High Court’s view, it was a key element in that balancing of interests that NTF had expressed a willingness to find solutions for Holship’s employees through negotiations. proceedings before the Supreme Court 25. Holship appealed against the Borgarting High Court’s judgment to the Supreme Court. The Supreme Court’s Appeals Committee ( Høyesteretts ankeutvalg ) granted leave to appeal, and in a subsequent decision of 25 May 2016 it decided that the proceedings should, for the time being, be limited to issues of: the applicability of competition law to collective agreements; whether the boycott was unlawful, owing to the right of Holship to freedom of establishment under Article 31 of the EEA Agreement and the relationship between that provision and ILO Convention No. 137; and whether, if the boycott was contrary to freedom of establishment, that part of the EEA Agreement ( denne delen av EØS-avtalen ) conflicted with Article 101 of the Constitution or Article 11 of the Convention, and if the latter provisions had to be given precedence if that was the case. 26. During the proceedings the Supreme Court applied for an advisory opinion by the Court of Justice of the European Free Trade Association (EFTA) States (the EFTA Court). The EFTA Court gave its opinion in a judgment of 19 April 2016 (E-14/15 Holship Norge AS v Norsk Transportarbeiderforbund ), part of which reads as follows: “49. It follows from the request that NTF participates in the management of the AO. It is in NTF’s and the AO’s common interest to preserve the market position of the AO. This combination of a business objective with NTF’s core tasks as a trade union becomes possible when a trade union engages in the management of an undertaking, such as it turns out in the present case. ... 50. The effects of the priority clause and the creation of the AO appear therefore not to be limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition ... 51. Moreover, the Court notes that the AO system in the present case protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement. ... 123. Fundamental rights form part of the unwritten principles of EEA law. ... The fundamental rights guaranteed in the EEA legal order are applicable in all situations governed by EEA law. Where overriding reasons in the public interest are invoked in order to justify measures which are liable to obstruct the exercise of the right of establishment, such justification, provided for by EEA law, must be interpreted in the light of the general principles of EEA law, in particular fundamental rights. ... 124 Whether a restrictive measure aims at protecting workers needs to be answered in light of these considerations. When determining the aim pursued by the boycott, the national court must therefore take into account the objective pursued by the overall system established through the collective agreement in question. In that regard, the boycott cannot be viewed in isolation from the agreement of which it seeks to procure acceptance. 125 The Court notes further that it is not sufficient that a measure of industrial action resorts to the legitimate aim of protection of workers in the abstract. It must rather be assessed if the measure at issue genuinely aims at the protection of workers. The absence of such an assessment may create an environment where the measures allegedly taken with reference to the protection of workers primarily seek to prevent undertakings from lawfully establishing themselves in other EEA States (see, for comparison, AG Poiares Maduro in his Opinion in Viking Line, cited above, point 67 et. seq.). 126 It appears in the present case that the aggregate effects of the priority clause and the creation of the AO are not limited to the establishment or improvement of working conditions of the workers of the AO and go beyond the core object and elements of collective bargaining and its inherent effects on competition. The AO system protects only a limited group of workers to the detriment of other workers, independently of the level of protection granted to those other workers. In particular, boycotts, such as the one at issue, detrimentally affect their situation. They are barred from performing the unloading and loading services and may even lose their employment if their employer affiliates to the Framework Agreement. 127 ... from the information before the Court, there is nothing to suggest that some kind of labour dispute between Holship and its employees exists and that the boycott imposed aims at improving the working conditions of Holship’s employees. The boycott is even to the detriment of Holship’s employees and may touch upon fundamental rights of Holship, such as the negative right to freedom of association, and possibly that of its employees. ... ... 130 ... A restrictive measure must be such as to guarantee the achievement of the intended aim and must not go beyond what is necessary in order to achieve that objective. ... 131 It is for the referring court to determine, having regard to all the facts and circumstances before it and the guidance provided by the Court, whether the restrictive measure at issue can be justified.” 27. The Supreme Court, sitting in a plenary formation, rendered its judgment on 16 December 2016. By ten votes to seven, it ruled that the boycott would be unlawful. 28. The Supreme Court’s majority firstly recognised that the Supreme Court had declared a similar boycott lawful in the Port of Sola case which it had adjudicated on in 1997 (see paragraph 18 above). In that case, however, it had not been submitted that the right to priority of engagement conflicted with freedom of establishment under Article 31 of the EEA Agreement, and the Supreme Court had therefore not considered that issue. In the instant case, that argument had been raised, and the EFTA Court had been asked for an advisory opinion, in which it had stated that the system of priority enshrined in the Framework Agreement was likely to constitute a restriction of freedom of establishment (see paragraph 26 above). 29. The Supreme Court did not find it necessary to conclude whether Article 101 of the Constitution (see paragraph 59 below) or Article 11 of the Convention would be applicable to the boycott. It stated that in the event that Article 101 applied, the question for the Supreme Court was whether the interference with a possible right to boycott was proportionate. 30. According to the Supreme Court, the right to freedom of establishment was a fundamental right in the context of EEA cooperation. For that reason, it concluded that the case concerned a balancing of the right possibly vested in the applicants under Article 11 of the Convention against Holship’s right to freedom of establishment under the EEA Agreement. In this context, the majority considered that this weighing up of interests was similar in nature to the procedure carried out when restrictions were imposed on freedom of establishment as a result of basic rights forming part of EU and EEA law: just as rights under the EEA Agreement could justify restrictions of constitutional or Convention-based human rights, constitutional or Convention-based human rights could justify restrictions of rights under the EEA Agreement. 31. The Supreme Court considered that if one used either the Constitution as one’s starting point, weighing the rights under it against the rights under the EEA Agreement, or the EEA Agreement, weighing the rights under it against those under the Constitution, one had to try to strike a fair balance between the rights in question. In the majority’s view, the outcome of weighing freedom of assembly against freedom of establishment should not depend on the set of rules which one used as one’s starting point. In a similar vein, it was stated that weighing freedom of association under the first paragraph of Article 101 of the Constitution against freedom of establishment under the EEA Agreement had to lead to the same result. The majority therefore moved on to address the issue of whether the announced boycott constituted a restriction on freedom of establishment under Article 31 of the EEA Agreement. 32. In carrying out that assessment, there was, in the majority’s view, no doubt that the right to priority of engagement for loading and unloading operations for dockworkers registered with the Administration Office at the port of Drammen, which NTF was attempting to make Holship accept, constituted a restriction on freedom of establishment under Article 31 of the EEA Agreement. The issue for the majority thus became whether the right to priority of engagement could be justified by the exemptions that applied to that freedom. 33. In that context, the Supreme Court’s majority stated that the practice of the Court of Justice of the European Union (CJEU) had been consistent in its application of the equivalent provision of Article 49 of the Treaty on the Functioning of the European Union (TFEU); restrictions on freedom of establishment which were applicable without discrimination on grounds of nationality could be justified by overriding reasons of general interest, provided that such restrictions were appropriate for achieving the objective pursued and did not go beyond what was necessary to achieve that objective. It was generally accepted law to interpret freedom of establishment under Article 31 of the EEA Agreement as being subject to the same limitation. 34. The Supreme Court held that regardless of how far the protection of the right to boycott extended as a fundamental right under EU and EEA law, it had been established that the protection of workers was recognised as an overriding reason of general interest that could justify restrictions on freedom of establishment. However, a specific assessment of the measure at issue was required. 35. Turning then to whether the announced boycott had to be considered lawful because it aimed to protect the interests of workers, the Supreme Court’s majority found that NTF’s ultimate objective in demanding the collective agreement was to protect such interests. However, this was not sufficient to justify the restriction on freedom of establishment. Reference was made to the case-law of the CJEU ( International Transport Workers’ Federation and Finnish Seamen’s Union v. Viking Line ABP and OÜ Viking Line Eesti, C-438/05, EU:C:2007:772, § 81, 11 December 2007), where it had been stated that while a collective action “could reasonably be considered to fall, at first sight, within the objective of protecting workers, such a view would no longer be tenable if it were established that the jobs or conditions of employment at issue were not jeopardised or under serious threat”. 36. Moreover, the Supreme Court’s majority stated that the Administration Office was a separate legal person, and that the type of collective agreement provision demanded by NTF was irregular in nature. The protection of working and pay conditions provided by the right to priority of engagement was, in its view, relatively indirect. Priority of engagement for loading and unloading operations for dockworkers registered with the Administration Office would limit access to that market for other operators, in effect regulating the market. Jobs were protected by the company ( bedriften ) being effectively shielded from outside competition. 37. The majority considered that although the Administration Office was a not-for-profit entity, it engaged in business activities in a market to which other operators wanted access. The dockworkers were employed by the office, and the activities of the office were financed by fees imposed on loading and unloading operations, which were paid by the port’s users. Priority of engagement for Administration Office employees for loading and unloading operations at the port of Drammen limited the access of other operators to this market. It favoured Administration Office personnel over other personnel, and through the right to priority of engagement, the Administration Office was shielded from competition from other entities. 38. In the view of the majority of the Supreme Court, the primary effect of the announced boycott would be Holship being denied access to a market it wanted to enter. As such, the action differed from other collective actions whose purpose was to pressure an employer to improve pay and working conditions for its employees or prevent an employer from terminating its employees’ employment. As had been emphasised by the CJEU, the wish to safeguard an undertaking’s survival or shield a member State’s undertaking from competition was not sufficient to justify restrictions on freedom of movement within the EEA. 39. The Supreme Court’s majority thus concluded that while the objective of the announced boycott was to protect the interests of workers, it could not be recognised as an overriding reason for restricting freedom of establishment. 40. The majority then went on to consider the issue of whether the announced boycott was protected as a fundamental right under EU and EEA law, and, if so, whether it took precedence over freedom of establishment. 41. The Supreme Court stated that one of the fundamental rights under EU and EEA law, which could be derived, inter alia, from freedom of assembly under Article 11 of the Convention, was the right to collective bargaining and collective action. Article 28 of the EU Charter explicitly established the right of collective bargaining and action. 42. The right of collective action, however, was not absolute, but “subject to a restriction of proportionality”. For EU and EEA law, this followed from, inter alia, the judgments in Viking, cited above, and Laval of the CJEU ( Laval un Partneri Ltd v Svenska Byggnadsarbetareförbundet, Svenska Byggnadsarbetareförbundets avd. 1, Byggettan, Svenska Elektrikerförbundet, C-341/05, EU:C:2007:809, 18 December 2007). It had been established in those judgments that fundamental rights had to be weighed against and reconciled with the requirements under EU and EEA law, and be in accordance with the principle of proportionality. 43. It had been established by the Court in its judgment in the case of Enerji Yapı-Yol Sen v. Turkey (no. 68959/01, § 24, 21 April 2009) that the right to strike was protected by Article 11 of the Convention. The Supreme Court’s majority stated that it had not, however, been determined whether the right to boycott under circumstances not related to a strike was protected under that provision. Whereas a strike normally entailed a financial burden for the party initiating the action, a boycott did not normally entail any financial burden on the party encouraging the boycott, and did not necessarily entail a financial burden on the party initiating it. Collective action in the form of boycotts therefore did not necessarily enjoy the same protection as the right to strike. 44. The Supreme Court’s majority went on to state that it was unnecessary to consider whether there was a “right to boycott” protected by Article 11 of the Convention, and that even if that provision had to be construed so as to protect a right to boycott, “this right [was] subject to the same restriction of proportionality as other rights protected by this provision”. 45. In arguing that the announced boycott was lawful, NTF, with the support of LO, had submitted before the Supreme Court that the right to boycott was protected by the European Social Charter (revised), ILO Convention No. 87 concerning Freedom to Associate and Protection of the Right to Organise, and ILO Convention No. 98 concerning the Application of the Principles of the Right to Organise and to Bargain Collectively. The Supreme Court stated in reply that, in so far as those Conventions did protect the right to boycott, they could not be interpreted as granting trade unions an unrestricted right to use boycotting as a means of collective action. In the Supreme Court’s majority’s view, those Conventions also had to allow for specific considerations similar to those required for rights under Article 11 § 2 of the Convention. 46. The Supreme Court held that in considering whether a boycott satisfied the requirements for proportionality pursuant to the above international instruments, among other things, the boycott had to be reconciled with the rights under the EEA Agreement, of which freedom of establishment was a cornerstone. 47. Moreover, in the case before it the boycott was being used as a means to compel Holship to accept the Administration Office’s workers’ right to priority of engagement for loading and unloading operations at the port of Drammen. The principal, and desired, effect would be to limit the access of other operators to the market for loading and unloading services. As such, the boycott would impose considerable restrictions on freedom of establishment and also conflict with the interests of other workers. If Holship were to be allowed to carry out loading and unloading operations at the port of Drammen, this would generate jobs within Holship. From a human rights perspective, it was hard to argue that those jobs carried less weight than jobs at the Administration Office, and the aims that the right to priority of engagement intended to protect could also be protected by other means. 48. The Supreme Court’s majority concluded that priority of engagement as demanded by NTF was not sufficiently justified and did not satisfy the requirement to strike a fair balance between freedom of establishment and the possible fundamental right to boycott. 49. Before the Supreme Court, NTF, with the support of LO, had strongly emphasised that priority of engagement for dockworkers for loading and unloading operations was in accordance with ILO Convention No. 137, and that formalisation of the priority clause had been Norway’s way of fulfilling its obligations under that Convention. 50. According to the Supreme Court’s majority, it was, however, unclear how that provision was to be interpreted. To the majority, the purpose of ILO Convention No. 137 seemed to be orderly working and pay conditions for dockworkers. In the Supreme Court’s assessment, these considerations could be fulfilled by means other than granting priority of engagement for loading and unloading work to one group of workers: in accordance with the domestic labour legislation, appointments should, as a general rule, be on a permanent basis; satisfactory wage conditions could be negotiated by collective agreements; and safety requirements could be met by the training and certification of workers. In any event, regardless of how Article 3 of the ILO Convention was to be interpreted, pursuant to the EEA Act, that Convention had to give precedence to freedom of establishment under Article 31 of the EEA Agreement. 51. The announced boycott thus had an unlawful purpose, as it violated freedom of establishment under Article 31 of the EEA Agreement and was therefore unlawful within the meaning of that term under section 2(a) of the Boycott Act (see paragraph 60 below). 52. In contrast, the seven-judge minority found, firstly, that competition law did not apply to the collective agreement which the announced boycott sought to enforce. It then went to on to examine whether the boycott could be justified as a restriction on the right to freedom of establishment under Article 31 of the EEA Agreement. 53. In that context, the minority noted that collective bargaining and action were acknowledged as fundamental rights in EEA law, and the protection of workers could thus constitute a compelling reason to accept restrictions on freedom of establishment. It then pointed to the EFTA Court’s having, in the minority’s view, misunderstood the purpose of the Administration Office in finding that it served a business purpose going beyond preserving pay and working conditions for its employees. The minority found it clear that preserving such conditions was the only purpose of the Administration Office. Nor did the minority agree with the majority that the impact that the boycott would have on the pay and working conditions of employees at the Administration Office would be indirect. 54. Moreover, taking into account the development since the CJEU’s judgments in the cases of Viking and Laval, including that the European Parliament had twice rejected proposals for EU directives that would have limited rights to priority of engagement for dockworkers, the provisions of ILO Convention No. 137, and the fact that many EU Member States had systems of priority for registered dockworkers, the minority concluded that the boycott, whose purpose was to enforce the collective agreement in question, served a legitimate aim. 55. Thereafter, the minority examined the issue of proportionality: whether the boycott was an adequate measure, and whether forcing Holship to accept the priority right by joining the Framework Agreement would entail going further than necessary to achieve the protection of workers. It concluded that a boycott was the only means of enforcing the agreement, and that nothing indicated that the Framework Agreement was inappropriate for ensuring the pay and working conditions of the dockworkers who enjoyed the priority right. In assessing whether the agreement went too far, the minority observed that dock work and shipping had developed, but on two occasions the EU Parliament had nevertheless not supported proposed EU Directives that would limit dockworkers’ priority rights. Reference was also made to considerations of the ILO Expert Committee about the relevance of the registration system. 56. The minority concluded that at the time there were no good alternatives to the priority system in the Framework Agreement, and took note that the CJEU, in European Commission v. Kingdom of Spain (EU:C:2014:2430, § 41, 11 December 2014), had indicated that an arrangement resembling that in the Framework Agreement would ensure the rights under ILO Convention No. 137 without violating freedom of establishment. They concluded that “the employment situation for the permanently employed dockworkers with the Administration Office would become a lot less secure if the priority clause were not observed. The basis for permanent employment may disappear”. 57. In conclusion, the minority found that in the circumstances of this case any restriction to which the announced boycott would give rise for the freedom of establishment was justified. 58. The minority lastly stated that Holship had argued that the boycott ran counter to the negative freedom of association under Articles 101 of the Constitution and 11 of the Convention, but this was not the case. On this point, the minority simply stated that it was sufficient to point to the Borgarting High Court’s reasoning (see paragraph 20 above), with which it agreed. | The first applicant union was a member of the second. The case concerned a decision of the Norwegian Supreme Court to declare unlawful a boycott announced by NTF to pressure a foreign company, Holship, into collective agreement in breach of EEA (European Economic Area) freedom of establishment. |
782 | Medical negligence and liability of health professionals | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1948 and lives in Plovdiv. A. The applicant ’ s illness and the surgery she underwent in 2003 6. In January 2000 the applicant, who had been diagnosed with invasive ductal carcinoma, underwent mastectomy of her left breast. 7. In the beginning of 2002 the applicant began to experience pain in the left side of her chest, for which in February 2002 she underwent a bone scintigraphy. The scintigraphy found a pathological uptake of radioactive tracer in her sixth left rib. Another bone scintigraphy in May 2002 confirmed that finding. However, a computerised axial tomography scan carried out later in May 2002 showed a suspected metastasis in the area of the eighth and ninth left ribs rather than the sixth one. The doctor who performed the scan recommended a further bone scintigraphy. Two such scintigraphies, in August 2002 and in January 2003, showed the same findings as the previous two. A radiography in February 2003 showed a suspected pathological lesion in the sixth left rib. But a second computerised axial tomography scan later in February 2003 found again that the suspected metastasis was in the area of the eighth and ninth left ribs. 8. On 26 February 2003 a panel of five medical doctors decided that the suspected metastasis was to be surgically removed. 9. Worried that the exact location of the suspected metastasis had not been fully established, the applicant asked the surgeon who was to operate on her, Dr K.M., whether further tests were required before the operation. According to the applicant, he told her that the available imaging results were sufficient and that he would be able to identify the metastasis once he had opened up her thorax. The applicant then approached the medical doctor who had performed the mastectomy in January 2000 (see paragraph 6 above). He told her that the suspected metastasis was very small, could not be localised visually, and had to be precisely localised before any surgery. The applicant shared her misgivings in that respect with Dr K.M. and reiterated her request for further tests before the operation. However, he reassured her that the available imaging results were sufficient. 10. Having assented to the operation by signing an informed consent form, the applicant underwent surgery on 13 March 2003. In the course of that surgery Dr K.M. removed fragments of her fourth and fifth left ribs, rather than her sixth, eighth or ninth left ribs. However, the operation report erroneously said that he had removed fragments of the eighth and ninth ribs. When talking to the applicant the next day, Dr K.M. likewise told her that he had removed fragments of those ribs, and that he had inspected her lungs. 11. The removed rib fragments were sent for histological testing, the results of which were ready on 25 March 2003 and showed that they did not contain cancerous tissue. 12. When seeing her hospitalisation report upon her discharge from hospital on 24 March 2003, the applicant was surprised to find that her sixth left rib had been left in place and that, instead, fragments of her fourth and fifth left ribs, where no lesions had been detected by the scans and where no cancerous tissue was present according to the histological tests, had been removed. She approached Dr K.M., who denied having made a mistake but agreed to prescribe a further bone scintigraphy, which was carried out in September 2003 and found an increased uptake of radioactive tracer in the sixth left rib and also in the fourth and fifth left ribs. A computerised axial tomography scan carried out the same month found that parts of the fourth and fifth left ribs had been removed and that the sixth left rib was fractured. 13. The applicant asked Dr K.M. to explain all that, and he apparently again denied having made any mistake. 14. For years after the operation, the applicant was undergoing radiotherapy and hormonal therapy. B. The complaints to the Ministry of Health and the hospital 15. In late 2003 the applicant complained about the operation to the Ministry of Health. The Ministry ordered the Plovdiv Regional Health Inspectorate to carry out an inquiry and, based on its findings, on 23 January 2004 informed the applicant that in view of the inconclusive results of the medical imaging tests, the operating team had chosen to make a wide opening in the thorax, enabling them to inspect the left side of the thoracic wall from the fourth to the ninth ribs. They had decided to remove parts of the fourth and fifth ribs because they had observed macroscopic changes on them; they had not found pathological changes in the sixth rib. The reference to the eighth and ninth ribs in the operation report had been a clerical mistake. 16. The results of the inquiry, coupled with a complaint filed by the applicant with the hospital, prompted the hospital ’ s ethical commission to review the case. It did not find any misconduct on the part of Dr K.M. C. The proceedings for damages against the surgeon and the hospital 1. The proceedings before the Plovdiv Regional Court 17. On 27 January 2004 the applicant brought a claim for damages against Dr K.M. and the hospital in which he was employed, a State-owned limited liability company. She alleged that he had (a) erroneously removed parts of two healthy ribs, the fourth and the fifth on the left, without having obtained her consent; (b) inspected her lungs, which had been unnecessary and unjustified; (c) fractured her sixth left rib; and (d) failed to remove the metastasis, which had been the very purpose of the operation. 18. On 14 April 2004 the Plovdiv Regional Court admitted a number of medical documents, including the consent form signed by the applicant before the operation. At the request of the applicant, the court ordered an expert report, to be drawn up by an oncologist, nominated by the applicant, a thoracic surgeon, nominated by Dr K.M., and a radiologist, nominated by the court, on a number of points raised by counsel for the applicant. At the request of Dr K.M., the court ordered a second expert report, to be drawn up by another thoracic surgeon. 19. On 2 July 2004 the court appointed a new oncologist because the one initially chosen had declined the task, ordered the applicant to present herself for examination by the experts, admitted her medical files, and heard as witnesses a surgeon who had taken part in the operation alongside Dr K.M. and another surgeon who had monitored the applicant in the hospital after the operation. 20. The two expert reports were filed in October 2004. 21. The report drawn up by the three experts described the different methods for detecting bone metastases, including bone scintigraphy, emphasising that their results had to be assessed cumulatively; said that when operating on cancer patients it was mandatory to inspect adjoining organs by palpation; described the extent, in their view limited, to which the removal of parts of the fourth and fifth left ribs had affected the applicant ’ s body movements; said that rib fractures were almost inevitable and very frequent in thoracotomies; said that the main principle when operating on cancer patients was that all decisions were to be made by the entire team; and opined that it would be possible to operate on the applicant again, should the need arise. 22. The thoracic surgeon ’ s report said that the operating team had not erred from a medical point of view when carrying out the operation, and that the applicant ’ s prognosis and quality of life would have been much worse had the operation not taken place. 23. On 20 October 2004 the court heard the four experts, including their answers to questions put by counsel for the applicant. The experts stood by their conclusions. The court then reserved judgment. However, on 5 January 2005 the court, finding that the applicant had not specified whether her preferred defendant was Dr K.M. or the hospital, reopened the proceedings and instructed her to do so. 24. On 23 March 2005 the court asked the thoracic surgeon to deal with additional questions. He filed his supplementary report in June 2006. 25. On 17 June 2005 the court admitted further written evidence and heard two witnesses called by the applicant. At the request of counsel for the applicant, it disqualified the thoracic surgeon on the basis that he was employed by the defendant hospital (see paragraph 51 below). The court then appointed a new expert. 26. In his report the new expert, a thoracic surgeon from Sofia, said that the operating team had not breached good medical practice by removing parts of the applicant ’ s fourth and fifth left ribs based on their visual and tactile inspection in the course of the operation, bearing in mind that histological testing of bone tissue required time and therefore no histological conclusion could be obtained during the operation; that they had correctly inspected the applicant ’ s lungs by palpation; that rib fractures in the course of such operations were almost inevitable; that the removal of the rib fragments had not unduly affected the applicant because they had later partly regenerated; and that it could not be categorically said that the applicant had a metastasis in her sixth rib, especially bearing in mind that no further metastases had been detected for many years after the operation. 27. On 26 October 2005 the court heard the new expert, including his answers to questions put by counsel for the applicant. He explained in detail why he stood by his conclusions. Counsel for the applicant requested a further expert report on the need for the operation. The court turned down the request on the basis that it went beyond the scope of the case. 28. In a judgment of 11 January 2006, the Plovdiv Regional Court dismissed the applicant ’ s claim. It referred to the conclusions of the experts but said that it would not take into account the reports drawn up by the expert who had been disqualified (see paragraphs 22, 24 and 25 above). Based on those conclusions, the court found that the precise location of the suspected metastasis had not been fully established before the operation. It went on to say that the allegation that Dr K.M. had removed parts of the applicant ’ s fourth and fifth left ribs without her consent was baseless, since the written consent form that she had signed before the operation, following an explanation on the proposed procedure, had not specified the rib to be operated upon. The court further held, with reference to the expert opinions, that Dr K.M. had not erred by removing parts of the fourth and fifth left ribs, as he had observed on them tissue which he had suspected to be cancerous. The fact that the histological test had later showed otherwise had not retrospectively rendered his assessment flawed. Nor had he erred by inspecting the applicant ’ s lungs by palpation – that was standard practice in that type of operation. Furthermore, the evidence did not categorically prove that the applicant still had a metastasis in her sixth left rib, especially bearing in mind the lack of other metastases after the operation. In particular, the experts were agreed that the medical imaging results submitted by the applicant could not be conclusive on that point in the absence of a fresh histological test. Lastly, the court found that it had not been proved that the applicant ’ s sixth rib had been fractured in the course of the operation and that, in any event, such a fracture was a habitual risk in that sort of operation. 2. The proceedings before the Plovdiv Court of Appeal 29. The applicant appealed to the Plovdiv Court of Appeal. 30. On 10 April 2006, at the request of counsel for the applicant, the court instructed the replacement thoracic surgeon who had acted as expert in the proceedings before the lower court (see paragraph 26 above) to draw up a supplementary report in which to address several points raised in the appeal. Counsel for the applicant also requested a fresh expert report, to be drawn up by three thoracic surgical oncologists. They asked that one of those be Dr V.T. Counsel for Dr K.M. opposed the request, arguing that Dr V.T. would be biased in favour of the applicant because he had known her for years. The court did not order the report. 31. The thoracic surgeon ’ s supplementary report said that the applicant had correctly been subjected to surgery; that the operating team had not erred by acting on the basis of the visual and tactile findings made in the course of the operation, especially bearing in mind the uncertain results of the prior medical imaging tests; that there was no universally reliable method to establish the presence of bone metastases; that it had been impossible to mark the precise spot of the suspected metastasis before the operation; and that Dr K.M. had had the requisite qualifications to operate on the applicant. 32. On 29 May 2006 the court admitted the report and heard the thoracic surgeon. The applicant submitted a private expert opinion which said that the removal of parts of her fourth and fifth left ribs had been needless and erroneous. This opinion could not be admitted because it had not been drawn up by court-appointed experts. The applicant however reiterated her earlier request for a fresh expert report (see paragraph 30 above), and the court acceded to it, appointing as experts two thoracic surgeons, one of whom was Dr V.T., and a thoracic surgical oncologist, all from Sofia. 33. The experts were divided. Dr V.T., who filed a minority report, was of the view that the operation had not been necessary and had been carelessly carried out, with the removal of parts of two healthy ribs. The other two experts expressed the same views as those set out in the thoracic surgeon ’ s supplementary report (see paragraph 31 above), and came to the conclusion that the operation had been required and that the operating team had not acted out of line with good medical practice. 34. On 18 September 2006 the court admitted the reports and heard the three experts, who each stood by the views expressed in their respective reports. On 2 October 2006 it admitted further written evidence and heard the parties ’ oral argument. 35. On an unknown later date in 2006 the Plovdiv Court of Appeal upheld the lower court ’ s judgment. It said that it credited all expert opinions save that of the expert disqualified in the proceedings before the lower court (see paragraphs 22, 24 and 25 above) and that of Dr V.T. (see paragraph 33 above), which went against the remainder of the evidence. It went on to hold, by reference to the other experts ’ conclusions, that the operation had been necessary, and that by removing parts of the applicant ’ s fourth and fifth left ribs on the basis of a visual and tactile examination Dr K.M. had acted in line with established medical practice, even though it had later transpired that they did not contain cancerous tissue. The court came to the same conclusions as the lower court with respect to the inspection of the applicant ’ s lungs by palpation, the alleged fracture of her sixth rib, and the question whether it had been proved that she had cancer after the operation (see paragraph 28 above). On that basis, the court held that the medical team which had operated on the applicant had not acted negligently and that it had not been categorically established that the applicant had suffered damage as a result of their actions. 3. The proceedings before the Supreme Court of Cassation 36. The applicant appealed on points of law. 37. In a judgment of 29 July 2008 ( реш. № 393 от 29.07.2008 г. по гр. д. № 2227/2008 г., ВКС, I г. о. ), the Supreme Court of Cassation quashed the lower court ’ s judgment and remitted the case. It held that that court had failed duly to elucidate the facts and in particular to take on an active role in the formulation of the questions to the experts. It had thus not fully clarified whether it had been necessary to operate on the applicant, whether her sixth left rib had been fractured in the course of the operation, and why it had been necessary to remove parts of her fourth and fifth left ribs. It had likewise failed to explain fully why it had disregarded Dr V.T. ’ s opinion; simply saying that it went against the rest of the evidence was not enough. On remittal, the lower court had to re-visit these points by taking into account the history of the applicant ’ s medical condition, and inquire into the need for the operation, the presence of metastases in her ribs, and the alleged worsening of her health after the operation. In so doing, it had to obtain a fresh medical expert report and enable the parties to take part in the formulation of the questions to the experts. 4. The remittal proceedings before the Plovdiv Court of Appeal 38. On remittal, the Plovdiv Court of Appeal ordered a fresh expert report, to be drawn up by two thoracic surgeons from Sofia and a medical imaging specialist from Plovdiv. 39. The report said that it had been imperative to carry out the operation; that the fracture of the sixth rib had been there before the operation and had been due to the rib ’ s heightened fragility resulting from previous anti-cancer treatment; that the removal of parts of the fourth and fifth ribs had not been an error in view of the inconclusive prior medical imaging data, which had its limitations, and the visual observation of tissue that could at the time have been suspected to be cancerous; that there was no categorical medical data proving the presence of a metastasis in the sixth rib before or after the operation – the bone scintigraphies had only showed an increased uptake of radioactive tracer there – in spite of the medical treatment undergone by the applicant after the operation; that the applicant could be operated upon again, should the need arise; and that the applicant ’ s medical condition would have been much worse had she indeed had an untreated metastasis in her sixth, eighth or ninth rib for years after the operation. 40. On 26 November 2008 the court admitted the report and heard the three experts, including their replies to questions posed by counsel for the applicant. The experts stood by their conclusions. The court also admitted other evidence submitted by the applicant. 41. On 11 May 2009 the Plovdiv Court of Appeal again upheld the lower court ’ s judgment. It held, by reference to the reports of the three experts that it had appointed, the three experts appointed in the proceedings before the lower court, and three of the experts appointed in the first appeal proceedings (see paragraphs 21, 31, 33 and 39 above), that the operation had been required. It said that it could not follow the opinion of Dr V.T. on this point (see paragraph 33 above) because, even though the question whether it had been advisable to operate in such circumstances could be debated theoretically, the medical team treating the applicant had been faced with an exigently practical situation : the medical imaging tests had showed the presence of a suspected isolated tumour whose exact location was uncertain, and there had been for this reason only one course of action: localise the tumour using the methods of surgical diagnostics and immediately remove it. The court agreed with the experts ’ conclusions that the operating team had not erred by removing parts of the applicant ’ s fourth and fifth ribs on the basis of their suspicion that they contained cancerous tissue, even though that had turned out not to be the case. The mention of the eighth and ninth ribs in the operation report had been a clerical mistake without incidence for the applicant ’ s health. Again by reference to the experts ’ conclusions, the court fully agreed with the lower court ’ s findings with respect to the inspection of the applicant ’ s lungs by palpation, and held that it had not been proved that her sixth rib had been fractured in the course of the operation, or that a metastasis in that rib had erroneously not been removed. On that basis, it concluded that Dr K.M. had not acted negligently. 5. The second proceedings before the Supreme Court of Cassation 42. The applicant again attempted to appeal on points of law. 43. In a decision of 10 November 2009 ( опр. № 1537 от 10.11.2009 г. по гр. д. № 1275/2009 г., ВКС, IV г. о. ), the Supreme Court of Cassation refused to admit the appeal for examination, holding that there was no divergent case-law on the points of law decided by the lower court and that the appeal in effect concerned that court ’ s findings of fact. | This case concerned a claim for damages by a patient against a surgeon and hospital following an operation. Various expert medical reports were produced in the proceedings. After examining the reports, the domestic courts found no evidence of negligence by the surgeon. The applicant complained in particular of a lack of impartiality on the part of the medical experts in the malpractice proceedings. |
444 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1955 and live in Baku. 7. The first applicant is a well-known human rights defender and civil society activist. She is the director of the Institute for Peace and Democracy (“the Institute”), a non-governmental organisation specialising in human rights protection and conflict resolution. 8. The second applicant, the first applicant ’ s husband, is a researcher and the head of the Conflict Resolution Department of the Institute. A. Institution of criminal proceedings against the first applicant and her detention pending trial 9. On 30 July 2014 the first applicant was arrested by the police and was taken to the Serious Crimes Department (“the SCD”) of the Prosecutor General ’ s Office. On the same day she was charged under Articles 178.3.2 (large-scale fraud), 192.2.2 (illegal entrepreneurship), 213.2.2 (large-scale tax evasion), 274 (high treason), 320.1 and 320.2 (falsification of official documents) of the Criminal Code. 10. On 30 July 2014 the Nasimi District Court, relying on the official charges brought against the first applicant and the prosecutor ’ s request for application of the preventive measure of remand in custody ( həbs qətimkan tədbiri ), ordered her detention pending trial for a period of three months. The court justified its application of the preventive measure by the gravity of the charges and the likelihood that if released, she might abscond from the investigation. 11. On 1 August 2014 the first applicant appealed against this decision, claiming that her detention was unlawful. She submitted, in particular, that there was no reasonable suspicion that she had committed a criminal offence, and that there was no justification for the application of the preventive measure of remand in custody. She pointed out in this connection that her detention was related to her activities as a human rights defender and that she had been punished for her activities. She further complained that the court had failed to take into account her personal circumstances, such as her state of health and age, when it had ordered her detention pending trial. 12. On 6 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the first-instance court ’ s decision was lawful. 13. On 24 October 2014 the Nasimi District Court extended the first applicant ’ s detention pending trial by four months, until 28 February 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed. 14. On the same day the Nasimi District Court also dismissed the first applicant ’ s request to be released on bail or placed under house arrest instead of in pre-trial detention. 15. On 27 October 2014 she appealed against these decisions, reiterating her previous complaints. 16. On 30 October 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court ’ s decisions of 24 October 2014. 17. No further extension decisions were included in the case file. B. Institution of criminal proceedings against the second applicant and his detention pending trial 18. On 30 July 2014 the second applicant was questioned by an investigator at the SCD. Following the interrogation, he was charged under Articles 178.3.2 (large-scale fraud) and 274 (high treason) of the Criminal Code. 19. On the same day the investigator decided to apply the preventive measure of placement under police supervision ( polisin nəzarəti altına vermə qətimkan tədbiri ), taking into account his state of health, in particular the fact that he suffered from chronic hypertension. The relevant part of the decision reads as follows: “Taking into consideration the state of health of the accused, Arif Yunusov, who was diagnosed with grade 3 hypertension and hypertensive crisis, and given medical treatment in the Central Oil Workers ’ Hospital and Baku City Clinical Hospital No. 1 ... it was appropriate to choose the preventive measure of placement under police supervision.” 20. It appears from the documents submitted by the Government that on 30 July 2014 the second applicant was examined by two experts, who issued forensic medical report no. 185/KES dated 31 July 2014. The report confirmed that the second applicant suffered from chronic hypertension. The report also indicated that “ considering A. Yunusov ’ s current state of health, it is possible to carry out investigative actions with him” (“ A. Yunusovun hal-hazırkı sağlamlıq durumu ilə əlaqədar onunla istintaq hərəkətlərinin aparılması mümkündür ”). 21. On 5 August 2014 the second applicant was arrested by the police. On the same day the prosecutor lodged a request with the Nasimi District Court asking it to replace the second applicant ’ s placement under police supervision with detention pending trial. The prosecutor justified his request by the second applicant ’ s failure to comply with the requirements of the preventive measure of placement under police supervision. The request also indicated that forensic medical report no. 185/KES dated 31 July 2014 did not reveal anything that would prevent the second applicant from participating in the investigation. 22. On 5 August 2014 the Nasimi District Court ordered the second applicant ’ s detention pending trial for a period of three months. The court justified the detention by the gravity of the charges and the likelihood that if released he might abscond from the investigation. 23. On 8 August 2014 the second applicant appealed against this decision. He submitted, in particular, that there was no reasonable suspicion that he had committed a criminal offence and that there was no justification for replacing the preventive measure of placement under police supervision with detention pending trial. He also pointed out that his detention was related to his and his wife ’ s activities as a civil society activist and human rights defender and that the court had failed to take into account his personal circumstances, such as his state of health and age, when it had ordered his detention pending trial. 24. On 11 August 2014 the Baku Court of Appeal dismissed the appeal, finding that the detention order was justified. 25. On 29 October 2014 the Nasimi District Court extended the second applicant ’ s detention pending trial by four months, until 5 March 2015. The court substantiated its decision by the fact that more time was needed to complete the investigation and that the grounds for the detention had not changed. 26. On 30 October 2014 the Nasimi District Court also dismissed the second applicant ’ s request to be released on bail or placed under house arrest instead of in pre-trial detention. 27. On 3 November 2014 the second applicant appealed against these decisions, reiterating his previous complaints and arguing that the first ‑ instance court had failed to justify his continued detention. 28. On 6 November 2014 the Baku Court of Appeal, in two separate decisions, upheld the Nasimi District Court ’ s decisions of 29 and 30 October 2014. 29. No further extension decisions were included in the case file. C. The applicants ’ state of health before their arrest 30. The medical documentation submitted by the parties shows that the first applicant suffers from a number of illnesses. In particular, she has suffered from chronic hepatitis ( hepatitis C) since 1997. People with hepatitis C usually suffer from constant exhaustion, joint, muscle and abdominal pain, general sickness and weakness, and often depression. A low-fat diet is required to reduce liver damage. The disease is potentially fatal. The first applicant regularly underwent medical treatment in Germany before her arrest. 31. Since 2009 she has also had type 2 diabetes, which is non-insulin dependent and requires sufferers to follow a special diabetic diet and take regular exercise. In addition, she suffers from myogelosis (muscle stiffness), arterial hypertension and a single cyst in the left kidney. 32. It also appears from the medical documents in the case file that she underwent surgery on both eyes in Germany before her arrest and needs specialist medical care as a follow-up, to avoid any risk of damage to her eyesight. The relevant part of a letter dated 5 September 2014 from the head of the Department of Ophthalmology at the Asklepios Clinic in Hamburg reads as follows: “Mrs Yunusova ’ s right and left eyes were both myopic with cataracts. It is absolutely necessary that she undergoes a repeat consultation and examination for the development of capsular fibrosis, which can lead to visual impairment and needs surgical laser treatment. It is also absolutely necessary that she undergoes a complete bilateral examination of her retina since she has had myopia and her risk of retinal detachment is substantially higher than in normal eyes and is further increased by the previous surgery. Any signs of retinal tears must be treated early with a laser retinopexy to prevent further damage and minimise the risk of permanent visual impairment.” 33. The medical documentation submitted by the parties shows that the second applicant suffers from grade 3 chronic hypertension and hypertensive crisis, with an increased risk of cardiovascular complications. He regularly underwent medical treatment in Germany before his arrest. He was also hospitalised from 25 to 28 April 2014 in the Central Oil Workers ’ Hospital and from 29 April to 6 May 2014 in Baku City Clinical Hospital No. 1. D. The applicants ’ conditions of detention and medical care 1. The first applicant ’ s conditions of detention and medical care (a) The first applicant ’ s account 34. The first applicant was detained in a cell with four other detainees, two of whom were extremely noisy. Heating was available but inadequate. The electricity was cut off from 2 to 3 p.m. and from 1 to 8 a.m., which made it impossible to use a heater. The temperature inside the cell and in the walking area was very low in winter. There was no proper ventilation inside the cell and the temperature was very high in summer. There was a problem with hot water distribution in the cell. In particular, she was not informed of the distribution time for the hot water and could not obtain more when necessary. Moreover, there was only one refrigerator for all the detainees on her floor which was not sufficient. 35. According to the first applicant, upon her arrival at the detention facility, she was examined by a doctor who confirmed that she had type 2 diabetes and chronic hepatitis C. 36. From 31 July to 5 August 2014 she was provided with the necessary diabetic food and medicine by the second applicant who, as a close family member, was entitled to deliver her parcels. However, following his arrest on 5 August 2014, she was deprived of the necessary diabetic food and medicine. In particular, the detention facility administration did not allow her lawyer or friends to deliver her parcels until 23 August 2014, arguing that only the family members of a detainee could send in parcels. 37. In this connection, it appears from the documents submitted by the first applicant that on 6 August 2014 her lawyer asked the investigator in charge of the case to allow her friends, A.I. and S.A., to deliver her a parcel. He pointed out that, taking into consideration that on 5 August 2014 her husband had been arrested and that her only daughter lived abroad, the first applicant did not have any other family member to do this. On 22 August 2014 the lawyer also lodged a request with the administration of the detention facility (“the administration”), complaining that on 21 August 2014 employees had refused to receive a parcel for the first applicant on the grounds that it had not been sent in by a family member. 38. On 22 August 2014 the first applicant lodged a request with the administration and the investigator in charge of the case, asking for a medical examination at her own expense by a doctor of her own choosing, A.G. She specified in her request that she suffered from diabetes and other serious illnesses, and that under domestic law detainees could be examined by a doctor of their own choosing. 39. By a letter of 4 September 2014, the deputy governor of the detention facility replied to her request, noting that there was no need for a medical examination by A.G. In this connection, he pointed out that the first applicant ’ s state of health was stable and being monitored by the detention facility doctors. The letter also indicated that on 19 August 2014 she had been examined by an endocrinologist from the Ministry of Health, who had recommended that she continue her previous treatment. 40. By a decision of 9 September 2014, the investigator dismissed her request, finding that all the necessary measures had been taken for her medical treatment in the detention facility. 41. On 23 September 2014 the first applicant ’ s cell was searched. On the same day she was deprived of her right to make phone calls for one month. She was also obliged to take a cold shower because the shower room had no hot water. 42. On 26 September 2014 the first applicant ’ s lawyer asked the administration to provide him with a copy of the administrative decision depriving the first applicant of her right to make phone calls. He did not receive any response to his request. 43. On 14 October 2014 the first applicant ’ s lawyer asked the administration to provide him with a list of medication prescribed to the first applicant during her detention. He did not receive any response to his request. 44. By a letter of 21 October 2014 the deputy governor of the detention facility responded to the first applicant ’ s complaint of being unable to receive parcels following her husband ’ s arrest. He noted that she had received a parcel sent in by A.I. on 23 August 2014. The letter was however silent as to the delivery of any parcels between 5 and 23 August 2014. 45. In a statement dated 4 May 2015 submitted by the first applicant to the Court with the applicants ’ reply to the Government ’ s observations, she stated that she had not been provided with any documents concerning her state of health. As regards her medical treatment in detention, she stated that she had been examined on 29 December 2014 and 12 March 2015 at the Baku Diagnostic Centre by C.W., a German doctor from Charité, a university hospital in Berlin. During the examination on 29 December 2014, she had been insulted and humiliated by a doctor named R.A when C.W. had been out of the room. In March 2015 the eyesight in her left eye had drastically deteriorated. The ophthalmologist who had examined her on 31 March 2015 stated that the same process would soon begin to happen to her right eye. She further stated that in detention her weight had dropped dramatically because of her illnesses and conditions of detention. (b) The Government ’ s account 46. On 31 July 2014 the first applicant was admitted to the Baku Pre ‑ trial Detention Facility of the Ministry of Justice. 47. She was held with four other detainees in a cell measuring 26.32 sq. m designed to hold six detainees. The cell was adequately lit. It had two windows measuring 1.2 x 1.4 metres. The sanitary facilities were separate from the rest of the cell and were adequately ventilated. She was provided with food, water, bedding, clothing and other essentials. 48. Upon her arrival at the detention facility on 31 July 2014, she underwent a series of medical examinations. Fluorography and electrocardiography examinations did not reveal any changes to her pathological condition. Her neuropsychological status was evaluated as satisfactory. An ultrasound examination of her abdomen and external examination of her body confirmed that she had previously undergone surgery. General and biochemical blood tests concluded that her blood sugar level was a little higher than average. Following these examinations, she was diagnosed with chronic hepatitis C, type 2 diabetes, gallstones, a single cyst in the left kidney ( measuring 0. 91 cm) and pseudophakia (replacement of the natural lenses of the eyes with intraocular lenses). The Government provided the Court with copies of the results of the medical tests and examinations carried out that day. 49. It further appears from the extracts of the first applicant ’ s detention facility medical records ( məhkumun tibbi kitabçası ) submitted by the Government that on 31 July 2014 the doctor recommended that the first applicant continue the medical treatment for diabetes prescribed by her previous doctor, the drug Galvus. She also had the rules of a diabetic diet explained to her and was provided with a blood glucose meter to monitor the level of sugar in her blood. 50. On 2 August 2014 the first applicant was provided with medication brought in by her relatives, including 20 Galvus Met capsules, 90 Glifer capsules, 308 Galvus tablets, 30 Beloc tablets and 17 Spasmalgon tablets. The next delivery of medication, comprising 20 Spasmalgon tablets, took place on 29 August 2014. The first applicant ’ s need for medication during this period was fully covered by the medication delivered on 2 August 2014. As to the provision of diabetic food from 5 to 23 August 2014, upon her arrival at the detention facility, the first applicant was registered on a list of diabetic detainees and was consequently provided with diabetic food during this period. 51. On 19 August 2014 she was examined by an endocrinologist in the detention facility, who recommended that she continue her previous treatment. On the same day she also underwent a blood test to determine her sugar level and the state of the hepatitis C. The Government provided the Court with copies of the results of the medical tests and examinations conducted that day. 52. On 23 September 2014 she was examined by a detention facility doctor. She complained of general sickness without raising any particular complaints. 53. On 8 and 10 October 2014 she was examined by a neurologist and a therapist. No pathological conditions were revealed. 54. On 19 November 2014 the first applicant refused to be examined by an ophthalmologist at the National Ophthalmology Centre in order to establish the impact of the diabetes on her eyesight. According to the Government, on 25 and 26 November and 2 and 3 December 2014 she again refused to be examined by the detention facility doctors. They submitted various records compiled by the doctors to support this claim. 55. On 11 December 2014 she was examined by an endocrinologist who assessed her state of health as stable. The Government did not submit any documents concerning this medical examination. 56. On the same day she refused to undergo various medical examinations by a virologist, endocrinologist and physician from the Ministry of Health in the presence of the members of the joint working group on human rights and members of the public committee under the Ministry of Justice. However, she refused to sign anything to say that she had refused to be examined. 57. On 12 December 2014 the first applicant ’ s lawyer lodged a request with the prosecution authorities, complaining of the deterioration of her state of health in detention and asking for a forensic medical examination. The lawyer submitted that her hepatitis C and diabetes were serious and that since her detention her weight had dropped dramatically from 61 to 47 or 48 kg. The lawyer also pointed out that, as the first applicant had not been provided with adequate medical care in detention, she refused to be examined by the detention facility doctors. 58. On the same day the investigator in charge of the case ordered a forensic medical examination of the first applicant. The experts could only examine her on 8 January 2015 in the presence of her lawyer due to her initial refusal. They issued forensic medical report no. 424/KES, which indicated that the examination had begun on 18 December 2014 and ended on 28 January 2015. The report confirmed that the first applicant suffered from a number of illnesses, including hepatitis C and diabetes. However, the experts concluded that the illnesses were not life -threatening and could be treated in detention. The relevant part of the conclusion of the report reads as follows: “ 4. The illnesses revealed in L.Yunusova, being chronic in nature, do not pose any danger to her life and she does not currently need immediate and specialist treatment. 5. If necessary, L. Yunusova can receive outpatient treatment in her conditions of detention in respect of the hepatitis C and diabetes which were diagnosed. 6. L. Yunusova ’ s current state of health allows her to remain in detention and does not pose any danger to her life.” 59. In the meantime, on 29 December 2014 the first applicant underwent a number of medical tests and examinations in the presence of C.W from Charité. In particular, she underwent a general and biochemical blood test, an ultrasound examination of the abdominal cavity, a chest computed tomography (CT ) scan, and electrocardiography and echocardiography examinations. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any information regarding medical recommendations or prescriptions made by the doctors following the examinations dated 29 December 2014. 60. On 26 January 2015 the first applicant again underwent various medical tests and examinations. She was examined by a group of doctors, including international doctors C.W., L.U. ( a professor from the Budapest Metropolitan Cancer Centre ) and A.B. ( a gynaecologist ). The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant ’ s medical treatment. 61. On 12 March 2015 she was examined in the presence of C.W. and Z.R. ( the director of ExaMed Medical Centre in Budapest ). On the same day, she underwent a blood test and gynaecological ultrasound examination. The Government submitted copies of the results of these medical tests and examinations to the Court with their observations. However, none of the documents submitted contained any medical recommendations or prescriptions concerning the first applicant ’ s medical treatment. 62. The extracts of the first applicant ’ s detention facility medical records contained further information concerning her state of health from 31 July 2014 to 12 March 2015: - On 19 and 20 September 2014 she was provided with the relevant medication brought in by her lawyer and friends. - On 22 September 2014 she complained of constant exhaustion, general sickness and weakness. - On 23 September 2014 she again complained of general sickness and stayed in bed. That day and the next she was examined by a prison doctor who assessed her state of health as satisfactory. In particular, it was established that her blood pressure, temperature and sugar level were within the permitted range. - On 30 September 2014 she was provided with medication for diabetes brought in by her friends. - On 3 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends. - On 8 and 10 October 2014 she was examined by a neurologist and a therapist. During the examination, she complained only of frequent urination. - On 17 October 2014 she underwent a prophylactic medical examination and was provided with medication brought in by her friends. - On 25, 28 and 31 October 2014 she was provided with medication brought in by her friends. - On 15, 21, 25 and 26 November she refused to be examined. - On 12 December 2014 she was provided with medication brought in by her friends. - On 3, 13 and 16 December 2014 she refused to be examined. - On 19 December 2014 she complained of a migraine and stress, but refused to be examined by a doctor. - On 23 December 2014 she was provided with medication brought in by her friends. - On 29 December 2014 she was examined in compliance with international standards by a group of doctors, including an international doctor. - On 6, 7 and 10 January 2015 she did not complain about her state of health. (Illegible) - On 23 January 2015 she complained of headaches, but refused to be examined by a doctor. - On 26 January 2015 she was again examined by a group of international doctors. - (date illegible ) January 2015 she again refused to be examined by a doctor and was provided with medication brought in by her friends. - On 6 and 17 February 2015 she again refused to be examined. - On 19 February 2015 she complained of headaches. - On 12 March 2015 she was again examined by a group of doctors, including international doctors. 2. The second applicant ’ s conditions of detention and medical care (a) The second applicant ’ s account 63. The second applicant was detained alone in a cell at the Pre-trial Detention Facility of the Ministry of National Security. 64. According to his lawyer, his state of health significantly deteriorated after his arrest. In particular, the domestic authorities had failed to provide him with adequate medical care in detention. He further submitted that in the absence of any information concerning the second applicant ’ s conditions of detention and medical care, it was impossible for him to give an account about either. (b) The Government ’ s account 65. On 6 August 2014 the second applicant was admitted to the Pre-trial Detention Facility of the Ministry of National Security. 66. He was held in a cell measuring 8 sq. m designed to hold two inmates. He was placed alone in the cell at his own request. The cell had two beds and was adequately lit and ventilated. He was provided with hot and cold water, bedding, clothing and other essentials. 67. According to a letter by the governor of the detention facility dated 13 March 2015, heating was available and functioned well. The sanitary conditions were acceptable and the food served was of good quality. The second applicant also had the right to listen to the radio for five hours a day and to use the detention facility library. He was also entitled to receive one food parcel a week ( weighing up to 31.5 kg) from his relatives. 68. Upon his arrival at the detention facility, the second applicant underwent a medical examination, during which he stated that he had suffered from arterial hypertension since 2006. However, he did not make any particular complaint about his state of health which was assessed as satisfactory. 69. On 7 August 2014 the second applicant underwent an electrocardiography examination which did not reveal any problems. 70. It further appears from a medical certificate dated 29 September 2014 from the head of the medical service of the detention facility that the second applicant ’ s state of health was satisfactory and that he had not sought medical attention during his pre-trial detention. E. The first applicant ’ s alleged ill-treatment in prison by prison guard and her cellmate 1. The first applicant ’ s account of events 71. On 7 August 2014 a repeat offender, N.H., was transferred to the applicant ’ s cell. After being transferred, N.H. frequently subjected the first applicant to verbal and physical violence. She complained to the administration, but no action was taken. 72. On 19 September 2014 she lodged a request with the administration, complaining about N.H. ’ s unlawful behaviour. In particular, she complained that she had been subjected to physical violence and that the placement of a repeat offender in her cell was not in compliance with domestic law. 73. On 23 September 2014 the first applicant was subjected to verbal and physical violence by Major Y., a prison guard. 74. By a letter of 21 October 2014, the governor of the detention facility responded to the first applicant ’ s request of 19 September 2014. He claimed that she had not been subjected to violence by N.H. and that her conditions of detention complied with the established standards. 2. The Government ’ s account of events 75. Following publication in the media of information concerning the first applicant ’ s alleged beating in the detention facility, on 25 September 2014 an investigator from the Sabunchu District Prosecutor ’ s Office ordered a forensic medical examination. He asked experts to establish whether there were any signs of ill-treatment on the first applicant ’ s body. 76. Following examinations on 29 September and 10 October 2014, the experts issued forensic medical report no. 285 dated 13 October 2014. They concluded that there were no signs of injury on the first applicant ’ s body. 77. On 22 October 2014 the investigator in charge of the case refused to institute criminal proceedings, finding that there was no evidence that the first applicant had been subjected to violence in the detention facility. The decision relied on the conclusions of the forensic medical report of 13 October 2014, statements by the first applicant ’ s cellmates and video footage from the detention facility. 78. No appeal was lodged against this decision. F. The Government ’ s monthly reports on the applicants ’ state of health 79. Following the indication of the interim measure under Rule 39 of the Rules of Court by the Acting President of the Section on 30 September 2014, the Government responded by a letter dated 3 November 2014 submitting that the relevant domestic authorities had been immediately informed of the interim measure indicated by the Court under Rule 39. They further submitted that the applicants ’ state of health was stable and did not require their transfer to an appropriate medical facility. The letter also contained an overview of the medical examinations that the applicants had undergone in October 2014, although no medical documents were attached to the letter. 80. The Government subsequently provided the Court with monthly information reports concerning the applicants ’ state of health and medical treatment in detention. All the monthly reports submitted were one or two pages long. They began in a standard format and said that “the applicants ’ state of health is stable and does not require [their] transfer to a specialist medical facility ”. They were not accompanied by any medical documents. 81. The reports sent by the Government from November 2014 to June 2015 contained the same information in respect of the first applicant ’ s state of health and medical treatment as they submitted in their observations of 27 May 2015. As regards the second applicant ’ s state of health and medical treatment, all the reports contained the two following sentences : “ Over the past month, the second applicant ’ s state of health was under constant medical supervision, and it was assessed as satisfactory; no deterioration in his health has been noted. (date), the second applicant passed [his] latest general medical examination, which did not reveal any deterioration in his health. ” 82. As regards the subsequent reports, the two-page report dated 30 July 2015 indicated that on 13 July 2015 the first applicant had been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. recommended that the first applicant take Harvoni and she started treatment with this drug on 14 July 2015. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached to the information report. 83. The two-page report dated 7 September 2015 indicated that on 14 August 2015 the first applicant had again been examined by C.W. in the presence of local doctors. The results of the examination showed that her state of health was stable and did not reveal any pathological conditions or signs of deterioration. C.W. prescribed the drug Velmetia for the regulation of her blood sugar level. As regards the second applicant, in addition to the above-mentioned two sentences, the report indicated that on 3 August 2015 at a court hearing, the second applicant had asked for medical help. His blood pressure had been 210/110 mm Hg and could be stabilised following the intervention of the emergency services. The hearing had been postponed upon a doctor ’ s advice. No medical documents were attached to the information report. 84. The one-page report dated 6 October 2015 indicated that the first applicant had finished her medical treatment with Harvoni. The report also contained information relating to her blood pressure and sugar level. As regards the second applicant, the report contained the above-mentioned two sentences. No medical documents were attached. 85. The reports dated 19 November and 2 December 2015 contained information relating to the first applicant ’ s blood pressure and sugar level and indicated that on 3 and 7 October 2015 the first applicant had refused to be examined by the doctors. On 30 October 2015 she had been examined by C.W, at whose request she had been transferred to the medical department of the Prison Service. As regards the second applicant, he had been examined by C.W on 30 October 2015. His blood pressure had been 224/122 mm Hg and he had been prescribed with the relevant medical treatment. On 2 November 2015 he had been transferred to the medical department of the Prison Service, where he had received the necessary medical treatment. Following this treatment, his blood pressure had lowered to 160/110 mm Hg. No medical documents were attached to the information report. G. The applicants ’ criminal conviction and subsequent release from detention 86. On an unspecified date the criminal investigation was completed and the applicants ’ case was referred to the Baku Assize Court for trial. 87. On 13 August 2015 it convicted and sentenced the applicants to eight and a half and seven years ’ imprisonment respectively. 88. On an unspecified date the applicants appealed against this judgment to the Baku Court of Appeal. 89. It appears from the information submitted by the Government that on an unspecified date the medical department of the Prison Service requested the Baku Court of Appeal to change the second applicant ’ s detention pending trial due to his emotional state and the possible repeat of hypertensive crisis. The Government did not provide the Court with a copy of this request. 90. On 12 November 2015 the Baku Court of Appeal granted the request and ordered the second applicant ’ s release. The Court was not provided with a copy of this decision. 91. On 9 December 2015 the Baku Court of Appeal quashed the Baku Assize Court ’ s judgment of 13 August 2015 and gave the applicants a conditional sentence of five years ’ imprisonment. The first applicant was released from the court. | This case concerned the allegation by the applicants, husband and wife and well-known human rights defenders and civil society activists, that their medical care in detention had been inadequate. Both had several serious medical problems prior to their arrest. The first applicant suffered from chronic hepatitis C, diabetes, gallstones, a cyst in the left kidney and had had surgery for cataracts. The second applicant suffered from chronic hypertension. These diagnoses were immediately confirmed upon the applicants’ admission to prison when they were examined by a doctor and underwent various medical tests. During the proceedings before the European Court, the couple had notably been granted their request – under Rule 39 (interim measures) of the Rules of Court – to be provided with adequate medical care in prison. |
1,078 | Access to work | 11. Mr. Rolf Kosiek, who is a German national born in 1934, lives in Nürtingen. After studying physics for several years, he sat his degree examinations (Diplomhauptprüfung) in November 1960 at the University of Heidelberg, where he took a doctorate in physics three years later. From 1 September 1962 to 31 October 1968, he worked in the First Institute of Physics at the same University, first as an employee (Angestellter) and then, from 1 April 1963, as a research assistant (wissenschaftlicher Assistent) with the status of temporary civil servant (Beamter auf Widerruf). His appointment, initially limited to four years and subsequently extended, was terminated with his agreement after he had been told by his Director that he could not expect a further extension. According to the Government, these assistantships are used to train scientists and give them an opportunity to prepare themselves for an academic career. For this reason they are deliberately awarded on temporary contracts which should have a maximum total duration of six years. 12. On 26 October 1962, shortly after taking up his duties, Mr. Kosiek signed a statement certifying that he had been given notice of the Federal Government ’ s decision of 19 December 1950 on anti-democratic activities by civil servants and of the decree issued on 12 September 1955 by the Land Government of Baden-Württemberg. Such a statement was required by the decree, whose first paragraph read: "It is taken for granted that candidates for civil-service posts shall not belong to any organisation which sets out to abolish the free democratic constitutional system (freiheitliche, demokratische Grundordnung) or support such tendencies in any other way, directly or indirectly. If necessary, appointment or employment should be regarded as having been brought about by wilful deceit (arglistige Täuschung)." The third paragraph stated that it was for the authorities concerned to take "the necessary action (disciplinary proceedings, dismissal)" "against staff (Bedienstete) who fail in their duty of loyalty". 13. In 1965, Mr. Kosiek joined the National Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD); he was chairman of the Rhine-Neckar branch from 1965 to May 1974. In 1968, he was appointed to the Executive Committee of the Baden-Württemberg section, of which he remained a member until 1978. In 1971, he was appointed the Executive Committee ’ s district agent for North Baden. He was also one of the three Land deputy chairmen, an appointment which was again renewed in June 1974. From autumn 1971, he served on the NPD Federal Executive Committee, where his responsibilities included university matters; he resigned in 1979. He left the NPD on 9 December 1980; he claims that he had already informed the Minister of Education and Culture, in January 1974, that he intended to leave the party as soon as he was given tenure. He was an NPD member of the Baden-Württemberg Parliament (Landtag) from 1 June 1968 to 31 May 1972, and stood for the party in the Federal elections in the autumn of 1972, when it failed to secure any seats in the Bundestag. Mr. Kosiek set out his political views in two books. The first of these, published in September 1972 and reprinted several times, is entitled "Marxismus? Ein Aberglaube! Naturwissenschaft widerlegt die geistigen Grundlagen von Marx und Lenin" ("Marxism? A superstition! Science disproves the intellectual foundations of Marx and Lenin"); the second, published in 1975, is entitled "Das Volk in seiner Wirklichkeit - Naturwissenschaften und Leben bestätigen den Volksbegriff" ("The People as it really is - Science and Life confirm the Concept of the Nation"). 14. In 1970, he applied for a position as lecturer (Dozent) at the State Engineering College (Staatliche Ingenieurschule) in Koblenz. In March, he passed a test there, and the college asked the Ministry of Education and Culture (Ministerium für Unterricht und Kultur) of the Land of Rhineland-Palatinate to appoint him with effect from 1 March 1971. On 15 December 1970, the Ministry informed him that another applicant had been given the post. A year later, having learned through the press that his political activities in the NPD had been the main reason for his failure to secure the appointment, Mr. Kosiek went to court to compel the Land to employ him. His case was dismissed on 24 October 1972 by the Administrative Court (Verwaltungsgericht) of Neustadt an der Weinstrasse and, on 2 March 1977, by the Land Administrative Court of Appeal (Oberverwaltungsgericht), which refused him leave to apply to the Federal Administrative Court for review on points of law. The Court of Appeal held that he did not afford the guarantee required by section 9(1)(2) of the Land Civil Servants Act (in its version of 14 July 1970) that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law. It based its conclusions mainly on his book "Das Volk in seiner Wirklichkeit" (see paragraph 13 above). 15. In 1972, the applicant applied for a vacant post as lecturer (Dozent) at Nürtingen Technical College (Fachhochschule). With two of the other seven candidates he took a test and was interviewed. On 14 July 1972, the Lecturers ’ Council (Dozentenrat) recommended the Ministry of Education and Culture to appoint him. On the same day, he was interviewed at the Ministry on the subject of his past activities as a member of the Land Parliament and his future political intentions. Immediately afterwards, he wrote to the principal of Nürtingen Technical College assuring him that he would, if appointed, keep his professional duties and private political commitment entirely separate and would not misuse his position as a teacher for political ends; he added that he had no intention of appearing in public in Nürtingen or the surrounding area as a party militant - during the election campaign for the Bundestag, for example. The Ministry appointed him as a lecturer (Dozent zur Anstellung) with the status of probationary civil servant (Beamter auf Probe) at Nürtingen Technical College, with effect from 1 September 1972. The decision was taken by the Minister himself who, according to the Government, had known the applicant as a parliamentarian and had no doubts whatever about his loyalty to the Constitution. The Land Civil Servants Act, in its version of 27 May 1971, requires all candidates for civil-service posts - whether temporary or permanent - to give "a guarantee that they will consistently uphold the free democratic constitutional system within the meaning of the Basic Law" (sections 6(1)(2) and 8). By virtue of section 64(2) of the Act, civil servants shall undertake to bear witness (bekennen) to the said system by their every word and deed and to uphold it. Mr. Kosiek did not have to sign a declaration of loyalty: the decree of 12 September 1955 (see paragraph 12 above) had been repealed on 4 February 1969, and it was not until 15 October 1973 that the Land Minister of the Interior issued directives implementing the decree on the appointment of extremists to the civil service which the Federal Chancellor and the Prime Ministers of the Länder had adopted on 28 January 1972 ("Ministerpräsidenten-Beschluss" - see paragraph 17 below). On 9 November 1972, the applicant was sworn in before the principal of Nürtingen Technical College; he promised, inter alia, to abide by and uphold the Basic Law and the Land Constitution (section 65 of the Land Civil Servants Act). 16. On 17 October 1973, pursuant to section 24(1) and (2) of the Land Civil Servants Act, which makes it possible for the normal three-year probationary period to be shortened, the principal of the College requested that Mr. Kosiek be given tenure for life (Ernennung auf Lebenszeit). After examining whether the legal conditions for tenure were fulfilled (sections 6 and 8 of the Land Civil Servants Act - see paragraph 15 above), the Ministry replied that Mr. Kosiek ’ s attitude and political activities had given rise to doubts concerning his loyalty to the Constitution and that he might even have to be dismissed. 17. On 13 February 1974, the applicant was interviewed on the subject of his attitude to the Constitution. On 28 February, the Ministry gave him notice of dismissal with effect from 30 June. Citing, inter alia, section 38(2) of the Land Civil Servants Act, which provides for dismissal of a probationary civil servant where he has not proved himself during the probationary period, and the decree of 28 January 1972 (see paragraph 15 above), it declared him unsuitable for the post (mangelnde Eignung): as a prominent NPD official, he had approved of NPD aims which were inimical to the Constitution (verfassungsfeindlich) and had thus shown that he did not support the free democratic constitutional system by his every word and deed and was not prepared to uphold it (section 64 of the Act). According to the Ministry, the NPD behaved in a manner hostile to the Constitution since, among other things, it rejected the idea of international understanding, human rights and the existing democratic order; specifically, it preached extreme nationalism and a racist ideology, and wished to abolish parliamentary government and the multi-party system. The decree of 28 January 1972 on the employment of extremists is designed to ensure uniformity of administrative practice in the matter; it reiterates civil servants ’ legal duty of loyalty to the free democratic constitutional system and in paragraph 2 provides (Official Gazette - Gemeinsames Amtsblatt - of certain Ministries of the Land, 1973, no. 34, p. 850): "2. Every case must be examined and decided according to its particular circumstances. Regard must be had in the process to the following principles: 2.1. Candidates 2.1.1. A candidate who engages in activities inimical to the Constitution shall not be appointed to the civil service. 2.1.2. If a candidate belongs to an organisation engaging in activities inimical to the Constitution, this fact shall cast doubt on whether he is prepared at all times to uphold the free democratic constitutional system. As a rule such doubt shall be sufficient reason for not appointing him. 2.2. Civil servants If a civil servant <fails to comply with his duty of loyalty to the Constitution> the appointing authority shall draw the necessary conclusions on the basis of the particular facts established in his case and shall consider whether grounds exist for dismissing him from the service (Entfernung aus dem Dienst)." German civil servants ’ special duty of loyalty to the State and its Constitution has been confirmed and clarified by the Federal Constitutional Court, in particular in a judgment on 22 May 1975 (Entscheidungen des Bundesverfassungsgerichts, vol. 39, pp. 334-391). 18. On 8 March 1974, the applicant lodged an objection (Widerspruch) against his dismissal. This was rejected by the Ministry on 3 May, and he instituted proceedings before the Stuttgart Administrative Court on 10 June. On 8 April 1975, the Ministry revoked its decision of 28 February 1974 on the ground that it had failed to consult the Staff Committee (Personalrat) of the Technical College beforehand. At the same time, it again dismissed the applicant on the same grounds as in February 1974 - having interviewed him again and consulted the Staff Committee in the meantime - with effect from 30 June 1975. On 9 May, the Stuttgart Administrative Court accordingly stayed (einstellen) the proceedings before it, holding that the issues raised had been settled. 19. On 2 May 1975, Mr. Kosiek lodged an objection against his second dismissal, arguing, inter alia, that the criticisms levelled at him had been unjustified. He asserted that it was common knowledge that he had personally and actively upheld the free democratic system. Since becoming a teacher he had resigned from several of his NPD posts, including those of chairman of the Rhine-Neckar branch, district agent for North Baden and member of the Federal Executive Committee responsible for university matters. In addition, he had deliberately restricted his political activities in the Nürtingen-Esslingen area and had not appeared there in public. His membership of a party with aims allegedly inimical to the Constitution was no reason for dismissing him. The Technical College and the Staff Committee had supported him and had testified to his personal and professional abilities. Finally, the probationary period was now over: the period which he had previously spent as a temporary civil servant should be added to the two years and seven months which he had spent as a probationary civil servant. On 7 May, the Land Ministry of Education and Culture rejected his objection, mainly on account of the major role he had played in NPD activities. It also referred to the Federal Administrative Court ’ s ruling that mere membership of an unconstitutional party might justify a civil servant ’ s dismissal; that being so, it was unnecessary to establish whether the applicant had restricted his political utterances, and his professional qualifications were immaterial. Finally, probation did not end automatically under civil-service law; as he had not been established, Mr. Kosiek was still a probationer and could therefore be dismissed under section 38 of the Land Civil Servants Act. 20. On 9 June 1975, the applicant challenged the Ministry ’ s decision before the Stuttgart Administrative Court, claiming that no definite proof had been adduced therein that his attitudes had been inimical to the Constitution. In German case-law, membership of an organisation regarded as being inimical to the Constitution was merely a possible reason for doubting a civil servant ’ s constitutional loyalty, and every case had to be examined in detail. The Ministry ’ s overall judgment did not satisfy this requirement. The applicant had always actively upheld the free democratic system - in 1968, for example, when the University of Heidelberg had been occupied; or in 1970 in Ulm, when he had retrieved the flag of the German Democratic Republic and handed it over to the public prosecutor; or again, as a member of the Land Parliament. The same was true of his writings. He could not be held responsible for NPD statements or actions which might be regarded as inimical to the Constitution. In any case, the party approved of the free democratic system within the meaning of the Basic Law. When the Land Minister appointed him as a probationary civil servant, he knew that he had been a member of the Federal Executive Committee (since 1971), a member of the Land Executive Committee (since 1968), the Land Executive Committee ’ s district agent for North Baden (since 1971) and chairman of the Rhine-Neckar branch of the NPD (since 1965). It was thus illogical that his commitment to the NPD should be seen as making him personally unsuitable and justifying his dismissal. The same inconsistency was apparent in earlier statements by the Minister. In December 1972, he had repeatedly stated - in the Land Parliament, on television and in interviews with the press - that Mr. Kosiek was not opposed to the Constitution and that his four-year record in Parliament showed as much. 21. On 26 January 1977, the Stuttgart Administrative Court set aside the decisions of 8 April and 7 May 1975. The court held that the law and general principles precluded dismissing a probationary civil servant on grounds which had been known - and should have been taken into account - when he was appointed. The Ministry had based its decision on facts already known in 1972 which it had not regarded at the time as indicating personal unsuitability. It had been aware from the decisions of the Conference of Land Ministers of the Interior (25 February 1972), quoted in the disputed decision of May 1974, that the NPD was regarded as having aims inimical to the Constitution, and it had also known that the applicant was an influential member of the party and an NPD member of the Land Parliament. The fact that the Ministry had nonetheless appointed Mr. Kosiek showed that it regarded his personal conduct, notwithstanding his commitment to the NPD, as affording the necessary guarantee of allegiance to the Constitution. This had been clear from the Minister ’ s reply to a question put to him in the Land Parliament in December 1972. Thus, when it was being determined whether the applicant had proved himself during his probation, his political conduct was relevant only in so far as it had changed in the meantime. The applicant ’ s continuing commitment to his party could not be judged any differently from before, as the NPD ’ s aims had not changed in the meantime. As for his book "Marxismus? Ein Aberglaube!", which the Ministry had not originally been aware of, it was not sufficient proof of opposition to the Constitution. The court had beforehand called the applicant to give evidence explaining a number of passages in his book. It had sought such evidence notably in order to establish whether his theory of genetic and biological inequality in humans was based on racist views and whether Mr. Kosiek drew from it conclusions which were incompatible with the principles of equality and respect for human rights enshrined in the Basic Law. 22. The Ministry appealed against this judgment on 23 June 1977. It contended that it must be free to rectify any error made during the appointment procedure; it could not be compelled to establish a probationary civil servant who lacked one of the requisite qualifications. Moreover, it had since been found that the NPD did not accept the Basic Law but was actively opposed to it and the lawful institutions. The applicant ’ s new book, "Das Volk in seiner Wirklichkeit", confirmed his personal views of the Basic Law; the Koblenz Administrative Court of Appeal (see paragraph 14 above) had been right to conclude from it that he did not recognise the Federal Republic and its Constitution as positive values, but extolled National Socialism. Mr. Kosiek contended that a book which had not appeared until 1975 could not be taken into account in the present proceedings. In any case, it did not give any grounds for doubting his allegiance to the Constitution; the Koblenz Court of Appeal had incorrectly summarised it and had totally distorted the views he had expressed in it (see paragraph 14 above). For the rest, he essentially repeated the arguments he had adduced at first instance. 23. On 28 February 1978, the Administrative Court of Appeal of the Land of Baden-Württemberg allowed the appeal and dismissed the applicant ’ s action. In the light especially of the case-law of the Federal Constitutional Court, particularly its judgment of 22 May 1975 (see paragraph 17 above), it ruled that the impugned decisions were lawful. After reviewing in detail the Ministry ’ s arguments and evidence, the Court held that it had not been proved that the NPD was pursuing aims inimical to the Constitution, that is to say, was systematically (planvoll) and actively seeking to undermine the free democratic constitutional system, bring about its abolition or jeopardise the continued existence of the Federal Republic of Germany (Article 21 of the Basic Law). Mere membership of the NPD could not therefore be construed as a sign of doubtful allegiance. Many NPD statements nonetheless did indicate a worrying tendency, and, that being so, a political party ’ s constitutionally suspect (verfassungsrechtlich bedenklich) views might give grounds for ascertaining the personal views of a civil servant who was a party member. A civil servant, who was bound actively to uphold the free democratic system, might accordingly be required to dissociate himself explicitly from the objectionable views of his party. Mr. Kosiek had failed to dispel the suspicion that he approved the NPD line. On the contrary, he had identified himself with it by his many militant activities. These, and the personal views he had expressed in his book "Das Volk in seiner Wirklichkeit", cast serious doubts on his loyalty to the Constitution. In his book, which could legitimately be taken into consideration, he had played down or indeed praised, without the least reservation or criticism, circumstances and events that had marked the Third Reich. In this respect, the Land Administrative Court of Appeal shared the views of the Koblenz Court of Appeal, which had analysed the book in detail (see paragraph 14 above). Admittedly, the applicant maintained that he had written in appreciative terms only of the first phase of the Third Reich, but this showed merely that there were at least some aspects of National Socialism of which he approved, not that he disavowed it. As early as 1933, the most important fundamental rights had been suspended, separation of powers abolished, political parties disbanded, trade unions broken up and (what marked the beginning of the persecution of the Jews) "non-Aryan" civil servants dismissed. Without any reservation or criticism the applicant judged the circumstances, events and ideas of the Third Reich preferable to the current situation. It was thus impossible to believe that he also endorsed the fundamental views and principles of the Basic Law as being a priceless asset to be protected. The Ministry had rightly concluded that Mr. Kosiek did not give any guarantee that he would at all times uphold the free democratic constitutional system within the meaning of the Basic Law, and that he had accordingly failed to prove himself during his probation. It mattered little whether he had the necessary professional qualifications and had refrained from expressing any political views at the Technical College. Before appointing him the Minister had certainly been aware of his prominence in the NPD, but this did not make the disputed revocation of his appointment unlawful. Performance of duties as a probationary civil servant was of vital importance for determining whether a probationer could be relied on to be loyal to the Constitution. The applicant should have expected the Ministry to carry out, at the end of the probationary period, a further thorough and final assessment of matters already known to it. 24. With leave of the Court of Appeal Mr. Kosiek applied for review on points of law, but the Federal Administrative Court (Bundesverwaltungsgericht) found against him on 28 November 1980. The Ministry ’ s doubts about the applicant ’ s loyalty to the Constitution - prompted by his active membership of the NPD - were justified. In this connection, the Court of Appeal had erred in regarding membership of a party as relevant only if the party deliberately sought to undermine or destroy the free democratic system - in other words, was liable to banning by the Constitutional Court under Article 21 of the Basic Law. It was in fact sufficient if the party pursued aims that were incompatible with that system. The NPD did; and the applicant, far from repudiating its aims, had approved of them. The Ministry ’ s doubts had consequently not been prompted, as the Court of Appeal had held, by statements in the applicant ’ s book "Das Volk in seiner Wirklichkeit" but had been corroborated and strengthened by them. Article 5(3) of the Basic Law, which was relied on by the applicant and protected freedom of art, science, research and teaching, did not lead to any different conclusion. Academics had a large measure of professional independence but that did not absolve them from their duty of loyalty to the Constitution. Notwithstanding the first sentence of Article 5(3), they remained civil servants, and a university lecturer with the status of probationary civil servant could be dismissed for unsuitability. The Ministry had been entitled to base its decision on Mr. Kosiek ’ s involvement with the NPD, notwithstanding that it had been aware of this at an earlier date, and on the content of the aforementioned book, which had been published only in 1975 and mentioned in the appeal proceedings. Lastly, the Federal Administrative Court dismissed various procedural complaints which had been raised before it. 25. On 16 March 1981, Mr. Kosiek applied to the Federal Constitutional Court to have the judgments of the Court of Appeal and the Federal Administrative Court set aside, on the ground that they contravened various Articles of the Basic Law. In particular, he challenged the objectivity and relevance of the evidence used against him and contended that the judgments complained of had been arbitrary. The courts which had given those judgments had made no attempt to establish whether the NPD and he had, by their statements, attacked the principles of the Basic Law. The NPD and he were not in fact pursuing aims that were incompatible with the Basic Law. The views expressed in his book were covered by freedom of expression and none of them bore on any principles of the free democratic system. Moreover, they were in line with the views of most present-day historians. The judgments in issue had accordingly infringed his right, secured in Article 3 of the Basic Law, not to be discriminated against on account of his opinions. In penalising a political opponent for holding views that were not directed against the democratic system, the authorities had disregarded his right to freedom of conscience and opinion, secured in Article 4. His dismissal and the criticisms of his book amounted to unlawful interference with his freedom of expression, contrary to Article 5(1) and (3). He had also been banned from his profession (Berufsverbot), a measure which was incompatible with Article 12, since he could no longer find a university lectureship at his age. In dismissing him, the Land, in defiance of Article 33(1), had deprived him of rights recognised by all the other Länder (except Bavaria ), which did not harass NPD members. Despite his suitability, professional qualifications and efficiency, he was being arbitrarily refused access to a civil-service post, or prevented from remaining in one, contrary to Article 33(2) and (3). Lastly, his dismissal - based on circumstances which were both lawful and known at the time of his appointment - was contrary to Article 103. 26. Sitting as a panel of three judges, the Constitutional Court decided on 31 July 1981 not to entertain the constitutional complaint, on the ground that it had insufficient prospects of success. Citing its own case-law (judgment of 22 May 1975 ), it recalled firstly that the duty of loyalty to the State and the Constitution was one of the traditional principles of the civil service (Article 33(5) of the Basic Law). Anyone who was not clearly prepared at all times to uphold the free democratic constitutional system was thus unfit to hold a civil-service post. Any probationary civil servant who could not be relied upon to do so must therefore be dismissed on grounds of personal unsuitability. In this connection, membership of a party whose aims were incompatible with the free democratic system was a relevant consideration. In the particular case, examination of the judgments challenged did not disclose any breach of constitutional law. Neither the findings of fact nor the conclusions of the Court of Appeal and the Federal Administrative Court were tainted by arbitrariness. The applicant ’ s dismissal did not breach any of the rights he relied on. 27. As his appeal against dismissal had a suspensive effect, Mr. Kosiek was able to continue teaching at Nürtingen Technical College, but the dismissal became final after the Federal Administrative Court ’ s judgment of 28 November 1980. He was accordingly notified on 15 December 1980 that his employment was at an end. | The applicant alleged that his political activities had been the main reason for his failure to secure an appointment as a lecturer. |
932 | Concurrent judicial functions in the same case | I. THE CIRCUMSTANCES OF THE CASE A. The planning background 7. The applicant bought the Calais Vinery, Calais Lane, St Martin’s in 1982. A number of planning applications were made to permit residential use of the land in the ensuing years. The applications were all refused, an appeal being dismissed by the Royal Court in July 1984. In 1986 or 1987 the applicant moved into a converted packing shed on his land. 8. In 1988 the applicant, through an advocate, made representations to a planning inquiry which was considering the draft Detailed Development Plan no. 6 (DDP6). In his report to the President of the Island Development Committee (IDC), the inspector set out the arguments led by the applicant’s advocate and by the advocate for the IDC, and concluded that a dwelling on the applicant’s site would be an intrusion into the agricultural/horticultural hinterland. He supported the IDC’s proposed zoning of the land as an area reserved for agricultural purposes and in which development was generally prohibited. 9. The President of the IDC submitted DDP6, in draft, to the President of the States of Deliberation on 22 May 1990. 10. The States of Deliberation, presided over by Mr Graham Dorey, the Deputy Bailiff, debated and adopted DDP6 on 27 and 28 June 1990. The zoning of the applicant’s land was not changed. 11. A retrospective application for planning permission to convert the packing shed into a dwelling was rejected by the IDC on 11 July 1991 as the IDC was bound to take into account DDP6, according to which the site was zoned as a Developed Glasshouse Area where residential development was not allowed. 12. On 27 March 1992 the applicant was convicted by the Magistrates’ Court on his guilty plea of changing the use of the shed without permission, contrary to section 14(1)(a) of the Island Development (Guernsey) Law 1966 (“the 1966 Law”). He was fined 100 pounds sterling, with ten days’ imprisonment in default. 13. On 15 February 1993 the IDC applied for permission under Section 37(1)(h) of the 1966 Law itself to carry out the necessary works to remedy the breach of the planning legislation. The application was adjourned in Ordinary Court by the Deputy Bailiff on 25 February 1993 for a date to be fixed. The Deputy Bailiff was also unwilling to hear the matter on the ground of having dealt with the applicant when he was Her Majesty’s Procureur. 14. A further application on the applicant’s behalf for permission to continue living in the shed was dismissed by the IDC on 18 May 1993, and a request for the section 37(1)(h) proceedings to be adjourned was dismissed by the Bailiff on 20 May 1993. On 25 June 1993 the Royal Court comprising the Bailiff and three Jurats granted the IDC’s application under Section 37(1)(h). B. The particular facts of the case 15. On 10 August 1993 the applicant’s current representative made a formal application for change of use on behalf of the applicant, together with a request that continued occupation be permitted pending determination of the expected appeal against an expected refusal. The application was rejected by the IDC on 26 October 1994 in the following terms: “I have to inform you that ... the Committee decided to reject your proposal for the following reason which is based on the considerations which the Committee is bound to take into account under the provisions of section 17 of the Island Development (Guernsey) Laws 1966-1990:– (a) Detailed Development Plan no. 6, as approved by the States. The site is located within a Developed Glasshouse Area and the Committee’s written statement of policy makes no provision for the form of development proposed. I enclose for your information a copy of the written statement of policy. ...” 16. On 6 June 1995 the Royal Court, comprising the Bailiff, by then Sir Graham Dorey, and seven Jurats, heard the applicant’s appeal. The applicant’s representative accepted that the written statement provided for no development other than “Developed Glasshouse” in the area, but submitted that there were nevertheless reasons in the case to permit the change of use: the external appearance of the building would not change and there would be no future prejudice to the horticultural use of the land, such that it was unreasonable for the IDC to take an unduly narrow view of what it allowed under the DDP. The Bailiff then summed up the applicant’s complaints to the Jurats, instructing them that the ultimate burden of proof was on the IDC to satisfy the Jurats that the IDC’s decision was reasonable. The appeal was dismissed unanimously. The decision recites the grounds of appeal, but gives no reasons. | In proceedings concerning the use of a farmland packing shed, the applicant complained in particular of the lack of independence and impartiality of the Royal Court of Guernsey on account of the presence of the Bailiff as a judge of the Royal Court, the latter being in addition vested with legislative and executive functions in Guernsey. |
244 | (Suspected) terrorists | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and is currently detained in Lannemezan Prison. A. Background to the case 6. The applicant was a member of the Islamic Salvation Front ( Front Islamique du Salut – “the FIS ” ) and left Algeria prior to the dissolution of that political group by a judgment of the Algiers Administrative Court dated 19 March 1992. After spending some time in Pakistan he entered the United Kingdom in January 1993 using the false name of Elias Serbis. On 26 February 1993 he applied for political asylum in that country, claiming to have been forced to leave Algeria because of his membership of the FIS. His application was refused on 10 August 1994. 7. On 25 July, 17 and 26 August, 3, 4 and 7 September and 6 and 17 October 1995 eight terrorist attacks were carried out in France. 8. Although no organisation explicitly claimed responsibility, certain factors, such as the existence of virulent press statements against France and the mode of operation of the attacks, pointed to the involvement of the Armed Islamic Group ( Groupement Islamique Armé – “the GIA ” ). 9. In the course of the judicial investigation aimed at identifying the perpetrators, telephone tapping operations carried out on public payphones used by a certain B.B. led to a number of persons being arrested and to the search being focused on the United Kingdom and an individual named Elyes (also known as Elyesse or Eliass ). The sources of these names or pseudonyms were a telephone conversation of 1 November concerning Elyes and the Western Union bank, a search of B.B. ’ s home during which a document was found showing that a sum of money had been transferred to B.B. from that bank on 16 October 1995, and the decoding of a list of telephone numbers found on B.B. ’ s person and at his home and featuring three numbers in England preceded by the name “ Elyesse ” or “ Eliass ”. B.B., who was arrested on 1 November 1995, also directly implicated “ Ylies ”, claiming that he had funded the campaign of attacks from London and had been kept informed of their progress. 10. On 3 November 1995 the French National Surveillance Directorate informed the investigators that the individual known as “ Elyes, Ilyes, Lyes, Iliesse, Eliass or Elyasse ”, whom B.B. had identified as having funded the attacks, might be the applicant. The latter, who was living in London, was suspected of being one of the leaders of the GIA in the United Kingdom, in particular because of his involvement with the publication Al Ansar (or Al Ansaar ) which the GIA used as a mouthpiece abroad. 11. The investigations carried out in London established that the applicant had a home there and had a set of keys to a second London address, which served as the offices of the magazine Al Ansar and as a meeting place for all the persons involved in publishing and distributing it. On the premises the investigators found, among other items, the following: contracts for three mobile phones in the names of three of the applicants ’ acquaintances and corresponding to the numbers identified at the home of B.B., who had rung the numbers before and after each attack; a receipt for the rental of a post - office box in the name of Fares ELIASS with the applicant ’ s fingerprints on it; letters and statements from the FIS; a statement saying that only the GIA was entitled to conduct the jihad; a letter from the GIA to the French President calling on him to convert to Islam; a letter commenting on the attacks carried out in France; copies of press articles on anti-terrorism mentioning the names of judges and members of the intelligence service; a piece of paper on which “ Notre Dame 33 ‑ 1 ‑ 43 ‑ 54-46-12 ” was written, corresponding to the telephone number of the Western Union branch at 4 rue du Cloître Notre Dame in Paris; and a receipt dated 21 July 1995 issued by a branch of Thomas Cook in London for a sum of 5,000 pounds sterling (GBP). 12. The applicant was arrested and placed in police custody from 4 to 7 November 1995 under the Prevention of Terrorism Act. 13. On 7 November 1995 the applicant was detained pending extradition under the terms of an international arrest warrant issued on the same day in connection with the investigation into the attack carried out on 6 October 1995 close to the Maison Blanche metro station. 14. Three further international arrest warrants were issued concerning the applicant: on 24 November 1995 in relation to the attack of 17 October at the Gare d ’ Orsay station; on 29 January 1996 in the case concerning a conspiracy to prepare terrorist attacks; and on 16 January 2001 in relation to the attack carried out on 25 July 1995 at the Saint-Michel suburban rail station. 15. The applicant lodged habeas corpus applications which were dismissed in June 1997 and in 2001. On 8 October 2001 the British Home Secretary ordered his removal to France, but that order was quashed by the High Court, Queen ’ s Bench Division, on 27 June 2002. 16. On 6 April 2005 the Home Secretary signed a fresh order for the applicant ’ s extradition in the light of the assurances provided by the French authorities concerning the safeguards of a fair and impartial trial in France. On 14 October 2005 the High Court dismissed an appeal by the applicant. 17. On 1 December 2005 the applicant was handed over to the French authorities and was remanded in custody the following day. B. The proceedings before the criminal courts ( procédure correctionnelle ) 18. By an order of 5 February 1999 the applicant was committed for trial in the Paris Criminal Court for involvement – in France and in England, from an unspecified date until 4 November 1995 – in an association or conspiracy formed with a view to the preparation, in the form of one or more material acts, of one of the terrorist acts in question. The investigating judge stated, in particular, as follows : “ - [the applicant] was responsible for distributing the journal Al Ansar, a propaganda outlet of the Armed Islamic Group; - ... was involved on this account in disseminating propaganda for that organisation, which is banned in France; - ... was the main contact person in Europe for [D.Z.], alias Abou Abderhamane Amine, in organising and carrying out the GIA ’ s activities in Europe; - ... was tasked with sending money to GIA members still in France to enable them to fund and carry out attacks; - ... was in contact with numerous persons involved in and convicted of criminal conspiracy with a view to a terrorist enterprise .” 19. In a judgment of 29 March 2006 accompanied by over thirty pages of reasoning, the Criminal Court first of all set out the facts with regard to the “political/religious background ”, the emergence of the FIS and then the GIA, the “background to the attacks” in 1995 – which it listed and described as attributable in all likelihood to the GIA – and the “context surrounding Rachid Ramda ”. 20. Ruling on the criminal charges, the court began by examining the case against the applicant. It found that it could be established with certainty, on the basis of precise and concurring physical evidence, that the applicant had indeed used various false names and aliases which had come up in the course of the investigations, a fact the court described as “beyond doubt and indisputable”. With regard to the GIA ’ s funding the court, having noted the prosecution ’ s claims that the applicant had funded the GIA groups which carried out the attacks in France during the second half of 1995, examined the factual evidence in the case file at length and in detail. It observed in particular that, according to one witness who was a GIA member, the organisation ’ s groups had different specialisations depending on their location, with the London group being responsible for sending funds. The court further noted that the applicant had transferred GBP 5,000 on 16 October 1995, two days before the attack of 17 October 1995. This was established by the statements of the British police officers tasked with keeping the applicant under surveillance and of the staff of the Western Union branch where the transfer had been made, and also by the discovery of the applicant ’ s fingerprints on the transfer slip kept by the Western Union branch. The court also observed that one of the perpetrators of the attacks, B.B., had stated that the money used in preparing the various attacks had always been supplied by the applicant from London. The court inferred that the facts as a whole “demonstrate[d] that Rachid Ramda was indeed responsible for funding terrorist groups on French soil”. Furthermore, in response to the public prosecutor ’ s submissions concerning the applicant ’ s role in disseminating GIA propaganda, the first-instance court also considered the various items of factual evidence before it, and in particular the wealth of correspondence and propaganda documents relating to the GIA ’ s views and actions that had been found during the searches of the various premises used by the applicant, as well as the statements by a GIA member confirming the applicant ’ s role as a member of the team publishing the magazine Al Ansar, which was the GIA outlet used in particular to claim responsibility for attacks. It also noted the presence at the applicant ’ s home of pamphlets promoting terrorism and killing with specific reference to France. The court concluded that the applicant had played a part in disseminating GIA propaganda and ideas. 21. Turning next to the applicant ’ s involvement in a criminal conspiracy in connection with a terrorist enterprise, the court found this offence to have been made out, as the investigation had shown that several groups located in the Lyons area, in Paris and in Lille had been behind the 1995 attacks. All the members had either been directly involved or had played an indirect role by aiding and abetting and providing resources, and all of them were either known activists or claimed to be activists within the GIA. The court found that the applicant ’ s contacts with the various members of these networks, who had the shared goal of carrying out attacks, were sufficient to establish his conscious and deliberate participation in a conspiracy to carry out terrorist acts on French soil. In its judgment the court set out, among other findings, the facts showing the existence of links to eight members of three groups forming a support network for the GIA. 22. Accordingly, the Criminal Court found the applicant guilty of criminal conspiracy in connection with a terrorist enterprise, on the basis of Articles 450-1 and 421-1 of the Criminal Code. It sentenced him to ten years ’ imprisonment and ordered his permanent exclusion from French territory. The court cited as reasons for imposing the prison sentence the fact that “by providing funding and issuing propaganda on behalf of the GIA, Rachid RAMDA not only enabled the attacks to be carried out but acted as a propagandist, potentially attracting new members to strengthen the networks spread over several European countries”. It further cited the fact that “his double talk reveal[ ed ] both his bad faith and his complete lack of regret or remorse”. The court awarded one euro (EUR) in damages to the association SOS Attentats, which had joined the proceedings as a civil party. 23. In a final judgment of 18 December 2006 the Paris Court of Appeal upheld that judgment. While referring expressly to the statement of facts as established in the judgment, it devoted some thirty pages to analysing the charges against the applicant, giving reasons. First of all, the Court of Appeal gave further details concerning the evolution and operation of the GIA. It also specified that the case before it concerned “the series of attacks carried out in France in the summer and autumn of 1995”, and that “the facts of the case at hand concern [ ed ] the preparation of the attacks and the actions enabling the attacks, which started in France in July 1995, to be carried out”. The Court of Appeal went on to list the eight attacks carried out between 25 July and 17 October 1995. With particular reference to the evidence of the existence of an information hub based in London which the applicant had allegedly managed, it found this to be established on the basis of the telephone calls made on the day after the killing of the imam S. in Paris; two days before the attack on the Saint-Michel suburban rail station; on the day of that attack and the day after the attempted attack on the Paris ‑ Lyon high-speed railway line at Cailloux-sur-Fontaines; on 12 September 1995, a few days after the attack of 3 September on Boulevard Richard Lenoir in Paris, the attempted attack of 4 September on Place Charles Vallin in Paris and the attack of 7 September in rue Jean-Claude Vivand in Villeurbanne; the day after the shooting at the Col de Maleval and the arrest of three people; five days before the attack of 6 October and two days after it; on 16 October 1995, in other words just before the attack of 17 October; and, finally, on 1 November 1995, immediately after a telephone conversation between B.B. and S.A.B. concerning preparations for an attack on the Wazemmes market in Lille, with B.B. stating that the purpose of the call was to report to the applicant on the “final preparations” for the Lille attack. 24. The Court of Appeal also emphasised the existence of several items of factual evidence pointing to the applicant ’ s involvement as the supervisor of a structure set up to fund the GIA ’ s activities. These included the fact that the applicant had sent funds from England on 16 October 1995 under the false name of Philippe Hervier, which had been received by B.B. at the Rivoli branch of the Rivaud bank under the false name of A. Benabbas, and which matched an entry in A.T. ’ s accounts book marked “36,800 francs, Lyseo ” and B.B. ’ s statements; the payment by the applicant of GBP 5,000 and 50,000 French francs (FRF), as shown by an entry in A.T. ’ s accounts book which mentioned funds sent by “ Walid ”, a false name used by the applicant or the first name of one of his acquaintances who could be contacted in order to reach him; statements from several individuals concerning services offered in return for payment, fundraising, the sending of substantial sums of money, a transfer of EUR 4,000 to M. and the existence of a receipt for GBP 100. 25. Lastly, the Court of Appeal noted a series of facts demonstrating, firstly, that the applicant had been “the main contact person ... in organising and carrying out the GIA ’ s activities in Europe”, as was clear in particular from a telephone conversation of 2 December 1995, from the statements of a witness who was a GIA member, and from the detailed content of several documents seized in London ( press statements, authorisations to conduct the jihad, documents on the management of funds, articles and handwritten notes on the activities of Islamist groups in Europe and anti-terrorist activities, notes on military weapons and the handling of explosives, and so on); secondly, that he had been “the GIA ’ s main propaganda agent outside Algeria”, with “his role on the magazine Al Ansaar ” (particularly in the light of documents seized at the applicant ’ s London address, namely a note on how to make the magazine more dynamic, a letter explaining the means of distributing it, a piece of computer equipment which the applicant would have been unable to afford, letters from readers and GIA sympathisers, a large number of magazines detailing the GIA ’ s ideas and violent actions, a substantial amount of correspondence relating to Algerian and Islamic issues, some testimonies, and a list of post - office boxes in numerous countries, used by the magazine ’ s subscribers); thirdly, that he had been at the centre of “the London cell which revolved around [him and which] also served as a rallying point for young recruits passing through”, as demonstrated by the personal histories of four of them; and fourthly, that he had been a leader with “a strategic role in the GIA ’ s external organisation”, as demonstrated by his links to members and correspondents of other Islamist terrorist groups worldwide. 26. The Court of Appeal echoed the reasons given by the Criminal Court and added that there was sufficient evidence in the case to demonstrate that the applicant had been contacted regularly in order to be kept informed of events, that he had been responsible for funding GIA operations in Europe, that he had acted as a conduit for the GIA ’ s military command and as a propaganda agent for that organisation, especially through the magazine Al Ansar, that he had given shelter to fugitives passing through London and had sometimes been called upon to coordinate the GIA ’ s external activities. The Court of Appeal therefore concluded as follows: “The Court of Appeal, like the first-instance court, therefore finds it established that the GIA created ‘ an external structure ’ in Europe designed to enable it to pursue its goal of overthrowing the Algerian regime, including by attacking institutions and people in countries that supported or were deemed to support that regime, by setting up networks in Belgium and France in particular which provided support to the Algerian guerrillas by supplying weapons, munitions and various items of equipment, supplying jihadists and providing safe havens (accommodation and false identity papers) to fighters who were fleeing the maquis or had arrived to carry out attacks, organised and coordinated by a cell in London in charge of fundraising and using funds acquired lawfully or unlawfully. ... [ the applicant ] knowingly played a decisive role, by means of the material acts referred to by the Criminal Court and by this court above, in the achievement of the GIA ’ s goal, participating from London in the implementation of the group ’ s external structure, and played a vital role within the organisation whose aim was to prepare, assist in and carry out the attacks which took place.” 27. In a judgment of 14 March 2007 the Court of Cassation dismissed an appeal on points of law by the applicant. C. The proceedings before the assize courts ( procédure criminelle ) 28. In a judgment of 13 February 2001 the Investigation Division of the Paris Court of Appeal indicted B.B., S.A.B. and the applicant for the attack of 17 October 1995 and committed them for trial before the Paris special Assize Court. The applicant was charged with aiding and abetting the crimes of attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection principally or incidentally with a terrorist enterprise, and with the related offence of a breach of the explosives legislation in connection with a terrorist enterprise. 29. On 3 August and 27 November 2001 the Investigation Division of the Paris Court of Appeal upheld the orders issued by the Paris investigating judge on 27 April (concerning the attack of 25 July 1995) and 13 July 2001 (concerning the attack of 6 October 1995) for the indictment of the applicant and B.B. and their committal for trial before the special Assize Court. The applicant faced trial for aiding and abetting the crimes of murder, attempted murder, destroying or damaging property belonging to others by the use of an explosive substance causing death, mutilation or permanent disability and temporary total unfitness for work of over eight days or of a maximum of eight days, in connection with a terrorist enterprise, and for the related offence of a breach of the explosives legislation in connection with a terrorist enterprise. 30. These three judgments of the Investigation Division specified that the applicant had aided and abetted by: transmitting instructions from the GIA ordering attacks with explosives and providing B.B. with instructions on manufacturing; relaying to the GIA leadership operational information provided by the perpetrators of the attacks; providing the perpetrators with the funds needed not just to manufacture the explosive devices but also to make all the logistical arrangements for preparing and carrying out the attacks. The judgments of 13 February and 3 August 2001 added the fact that the funds had also been intended, if necessary, to enable the perpetrators based in France to flee. 31. In these judgments the judges noted in particular the following facts in relation to the applicant. The three mobile phones used by the applicant had received calls from B.B. on 16 and 22 October and 1 November 1995; a receipt for an exchange transaction performed on 16 October 1885 at 3.50 p.m. (Paris time) for an amount of FRF 36,800 had been discovered at B.B. ’ s home, together with a notice of transfer of FRF 38,000 from an English branch of Western Union, and the checks carried out established that the applicant had gone into a Londis shop in Wembley containing a Western Union office at 2.34 p.m. on 16 October 1995 and had re-emerged at 3.26 p.m. (London time); the applicant ’ s fingerprints had been found on the transfer slip kept by the Western Union office in the Londis shop; the words “LYESO – FF 36,600” had been found in the credit column of B.B. ’ s accounts and the words “West Union” and “West-Union Bank” had also been entered by B.B. in a document logging the details of the 17 October attack; the applicant had possessed the details of the Western Union branch in rue du Cloître in the Notre-Dame district of Paris; an exchange receipt dated 21 July 1995, for an amount of GBP 5,000 exchanged at a rate of 7.5%, had been found at the applicant ’ s home, with the number of a public payphone in Corbeil - Essonnes used by A.T. written on the back, and an entry had been made in the credit column of B.B. ’ s accounts for the sum of “5,000 pounds sterling from [W.], converted at a rate of 7.5% ”; a sum of GBP 6,945 had been sent on 20 July 1995; between 20 and 25 July 1995 the sum of FRF 300 had been entered as expenditure for the purchase of a “GB ticket”, demonstrating that the funds, after being exchanged in England, had been transported to Paris in the days leading up to the attack at the Saint ‑ Michel suburban rail station; and a letter from British Telecom had been found, addressed to “ Walid ” at 122 Hamlet Gardens, the applicant ’ s address. The judges also noted, as evidence against the applicant, the content of a hard disk found in a London flat to which the applicant had keys, containing two financial reports, one relating to the activities of the GIA in Belgium and the other to a set of accounts for the period from September 1994 to 1 November 1995, the date of B.B. ’ s arrest. 32. In its judgment of 13 February 2001 concerning the attack of 17 October 1995 the Investigation Division observed in particular that the applicant ’ s three telephone numbers had been called repeatedly from payphones used by B.B., around the time of the different attacks and in particular on the day before the attack of 17 October 1995. It compared these calls with the statements made by B.B. and a further accomplice, who had been planning an attack on Lille city market, according to which they had reported to the applicant on preparations for the operations, and in particular for the attack of 17 October 1995. The Investigation Division also noted that the applicant had made a transfer of FRF 36,800 from London the day before that attack – as shown by the fact that his fingerprints had been found on the transfer slip in the Western Union office in London – which had been received by B.B. in Paris on the same day. The link between that transfer and the attack of 17 October 1995 had also been established by B.B. ’ s statements and by a call made to the applicant ’ s mobile phone the same day, after the money had been received. 33. In its judgment of 3 August 2001 relating more specifically to the attack of 2 5 July 1995, the Investigation Division stressed that the applicant ’ s English mobile phone had been called two days before that attack from a public payphone in Paris close to B.B. ’ s home from which other calls had been made, including a call to a mobile phone belonging to a member of the French GIA network, made one minute before the applicant was called. Furthermore, the day before the attack and then on the day itself, the applicant had received calls from France on his various numbers, including from a payphone close to the previous one, concerning his role as an intermediary between the perpetrators of the attacks and the person masterminding them in Algeria. Above all, the Investigation Division noted that the applicant had on 2 and 20 July 1995 sent sums of GBP 5,000 and GBP 6,945 respectively which were directly linked to the attack carried out on 25 July 1995. 34. Lastly, in its judgment of 27 November 2001 the Investigation Division also noted that it was clear from these different elements that the applicant had sent funds to the perpetrators of the attacks, not just in relation to the campaign of attacks as a whole but also for use directly in carrying out the attack of 6 October 1995. With regard to the latter, it noted that the instructions issued by the GIA concerning the campaigns, which had been accompanied by advice on the manufacture of explosives, had been transmitted via the applicant, who had also funded all the operational arrangements put in place in France in order to ensure the success of the attacks, and that the recipients had been required to report to him on how the money had been used. A number of telephone calls had established that the applicant had been kept informed of the progress of the attacks, and in particular of the attack of 6 October 1995, which had been followed by a telephone call on 8 October 1995 telling the applicant that everything had gone well on 6 October. 35. On 26 October 2007 the Paris special Assize Court, composed of seven professional judges, found the applicant guilty as charged in connection with the three attacks. It sentenced him to life imprisonment with a minimum term of twenty-two years. The applicant appealed on 29 October 2007. 36. The appeal proceedings before the Paris special Assize Court, this time composed of nine professional judges, took place from 16 September to 13 October 2009. One hundred and ninety-six individuals joined the proceedings as civil parties, as did the RATP (the Paris public-transport operator), the SNCF (the French national rail company), the Guarantee Fund for victims of terrorist acts and other crimes, the Government Law Officer and the association SOS Attentats. 37. At the hearing of 16 September 2009 counsel for the applicant made submissions requesting the termination of the proceedings and a finding that the prosecution was null and void, on the basis of the ne bis in idem principle. Citing Article 4 of Protocol No. 7 and the judgment in Sergey Zolotukhin v. Russia, delivered by the Grand Chamber of the Court on 10 February 2009, they argued that the material acts which the Assize Court was called on to examine were the same as those of which the applicant had previously been convicted by the Paris Court of Appeal in its final judgment of 18 December 2006. In counsel ’ s view, the material acts alleged in the Assize Court proceedings, namely the transfer of funds to the perpetrators of the attacks, the transmission of instructions to the same perpetrators, and the monitoring of the preparation and carrying -out of the attacks, had also been alleged in the Criminal Court proceedings. 38. In an interlocutory judgment of 17 September 2009 the special Assize Court dismissed the objection regarding a breach of the ne bis in idem principle, finding as follows: “Although Rachid RAMDA ’ s defence counsel correctly points out that Article 4 of Protocol No. 7 must be understood as prohibiting the prosecution or trial of a second ‘ offence ’ in so far as it arises from identical facts or facts which are substantially the same, the following factors need to be taken into consideration in the present case: - The facts on which the criminal courts based their finding that Rachid RAMDA was guilty, while they related to criminal acts dealt with in the current set of proceedings, were by no means confined to them. In finding the offence of criminal conspiracy to be made out – a separate offence that is provided for and punishable under Article 450-1 of the Criminal Code – the courts considered all the elements apt to substantiate the accused ’ s involvement in the conspiracy, which was aimed at organising, developing and ensuring the continuation of a movement that was bent on imposing its cause, in particular by using clandestine methods and material and intellectual resources (recruitment of and regular contact with activists, dissemination of information on the GIA ’ s activities and views, fundraising, seeking donations of weapons and various items of equipment, etc.), without necessarily pursuing the sole objective of carrying out the attacks that are the subject of the proceedings. - The facts to be considered by this court differ substantially from the earlier ones in that they relate to criminal conduct aimed at the achievement of one-off objectives which were determined with precision and were not inextricably linked, and which were driven by a specific motivation consisting in particular in providing others, in full knowledge of the situation, with the means of deliberately harming human life or individuals ’ physical or mental integrity by the use of explosives. - In these circumstances the finding that Rachid RAMDA was guilty and his conviction by the Paris Court of Appeal cannot lead the Assize Court to find that his prosecution has lapsed and to declare the criminal proceedings against him null and void. - It is thus the task of the Assize Court, on conclusion of the proceedings and in the light thereof, to rule, by answering the questions raised before it, as to whether or not Rachid RAMDA is guilty of aiding and abetting as charged ... ” 39. In an interlocutory judgment of 24 September 2009 the special Assize Court of Appeal deferred its decision on a request for further information and eventually rejected the request in a further interlocutory judgment of 8 October 2009. 40. Sixty-three questions concerning the applicant alone were put to the special Assize Court of Appeal. Twenty-six related to the circumstances surrounding the attack of 25 July 1995, eighteen to the events surrounding the attack of 6 October 1995 and nineteen to the attack of 17 October 1995. The questions gave precise details of the various alleged acts and where and when they had been committed, and listed the names of dozens of victims of killings and attempted killings, mutilation or permanent disability, injuries resulting in unfitness for work of up to eight days or more, and victims of damage to their property. The answer to sixty-one of the questions was “yes ”, by a majority (some questions, followed by a list of victims and requiring an individual reply in each case, were also found partly “devoid of purpose”), and two questions were found to be “ devoid of purpose ”. Besides details regarding the places and dates concerned in each instance, as well as the indication of the victims according to the damage suffered (death, mutilation or permanent disability, temporary total unfitness for work of over eight days and of a maximum of eight days, destruction of or damage to property), the questions related in particular to whether or not the applicant ’ s actions had been premeditated (questions nos. 2, 8, 28 and 46), and to incitement of others to commit certain acts (questions nos. 5, 11, 20, 25, 31, 36, 43, 49, 57 and 62), the assistance lent by the applicant to the perpetrators of the attacks (questions nos. 10, 19, 24, 30, 35, 42, 48, 56 and 61) and whether the applicant had issued instructions to others to commit certain crimes (questions nos. 6, 12, 21, 26, 32, 37, 44, 50, 58 and 63). The parties did not comment on these questions. 41. An affirmative answer was given to the questions whether the applicant had knowingly assisted in the manufacture or possession of explosive devices and in issuing instructions to that effect, in the context of the attacks of 25 July and 6 and 17 October 1995, and whether he had knowingly incited others to manufacture or possess such devices in the context of the attacks of 25 July and 17 October 1995. 42. In a judgment of 13 October 2009 the special Assize Court of Appeal found the applicant guilty and sentenced him to life imprisonment with a minimum term of twenty-two years, and ordered his permanent exclusion from French territory. It adjourned the civil hearing for a later date. The applicant appealed on points of law. 43. On 15 June 2011 the Court of Cassation dismissed the applicant ’ s appeal on points of law. Regarding his ground of appeal to the effect that no reasons had been given for the finding of guilt, based in particular on Article 6 of the Convention, it found as follows: “Firstly, the impugned questions, which were put in accordance with the law, established in all aspects the acts of aiding and abetting of which Mr Ramda was found guilty. Secondly, the judgment convicting Mr Ramda included the answers which the judges comprising the special Assize Court of Appeal gave immediately after the oral proceedings, on the basis of their personal conviction and by a majority following a secret vote, to the questions concerning his guilt which were put to them in accordance with the operative provisions of the committal orders and were the subject of adversarial argument. Accordingly, and given that steps were taken to ensure the prior investigation of the charges contained in the indictment, the free exercise of the rights of the defence, and the public and adversarial nature of the proceedings, the requirements laid down by the statutory and Convention provisions relied on were satisfied. ” 44. As to the ground of appeal concerning a breach of the ne bis in idem principle on account of the applicant ’ s final conviction by the Paris Court of Appeal on 18 December 2006 on the basis of identical facts, the Court of Cassation held that criminal conspiracy was a separate offence from the crimes prepared or committed by its members and also from the offences characterised by certain material acts that embodied it. ... | The applicant, an Algerian national, was extradited from the United Kingdom to France on charges related to a series of terrorist attacks in 1995 in France. He complained about an alleged error in the reasoning of the judgment delivered by a special bench of the Assize Court of Appeal which convicted him. He also complained about a violation of the ne bis in idem principle owing to his criminal conviction despite his previous final conviction by the ordinary criminal courts. |
872 | Disclosure of personal data | I. circumstances of the case 8. Ms M.S. is a Swedish citizen born in 1951 and resident in Sweden. Prior to the events in question she was employed as a nursery-school teacher. 9. When she was 14 years old she was diagnosed as having spondylolisthesis, a condition affecting the spine which can cause chronic back pain. 10. On 9 October 1981 she slipped and fell at work, injuring her back. She was pregnant at the time, and had been seeing a doctor at the women's clinic at the hospital. On the afternoon of the accident she went to the same clinic. Following this incident, Ms M.S. was unable to return to work for any sustained period of time because of severe back pain. After she had been on the sick-list for some time, she was granted a temporary disability pension ( sjukbidrag ) and, from October 1994, a disability pension ( förtidspension ). 11. On 13 March 1991 she made a claim for compensation under the Industrial Injury Insurance Act ( Lagen om arbetsskadeförsäkring, 1976:380 – hereafter “the Insurance Act”) from the Social Insurance Office ( Försäkringskassan; hereafter “the Office”). 12. Some time thereafter, as a matter of routine, her lawyer requested a copy of the file which had been compiled by the Office for the purposes of her claim. From the documents on the file she learnt that the Office had written to the women's clinic on 25 March 1992 as follows: “[The applicant] has reported an industrial injury which occurred on 9 October 1981. She contacted your clinic as she was pregnant at the time. The Office requests copies of medical records from that time. We hope you will assist us as soon as possible as the matter has been pending for some time and we need the records in order to determine it.” It was also apparent from the file that, on 30 March 1992, the head of the clinic had submitted copies of her medical records containing information on treatment she had received in October 1981, March 1982 and between October 1985 and February 1986. Ms M.S. had not been consulted prior to the disclosure of these documents. 13. The medical records from October 1985 stated, inter alia, that Ms M.S. had complained of pain in her hips and back, but there was no indication that she had alleged that she had injured herself at work. The records from this period contained details of an abortion which she had requested because her pregnancy exacerbated her back complaint. The abortion had been performed in October 1985. In this regard, an entry of 22 October 1985 stated: “The reason for the termination is above all that she had an incredibly bad back, especially during her last pregnancy.” 14. On 19 May 1992 the Office rejected Ms M.S.'s claim for compensation under the Insurance Act, finding that her sick-leave had not been caused by an industrial injury. The applicant appealed successively to the Social Insurance Board ( Socialförsäkringsnämnden ), the local County Administrative Court ( Länsrätten ) and the competent Administrative Court of Appeal ( Kammarrätten ), but at each stage her appeal was rejected. On 26 February 1996 the Supreme Administrative Court ( Regeringsrätten ) refused her leave to appeal. | This case concerned the communication by a clinic to a social-security body of medical records containing information about an abortion performed on the applicant. |
787 | Organ transplantation | THE CIRCUMSTANCES OF THE CASE 2. The applicant was born in 1974 and lives in Bregenz. She was represented by Mr K.P. Pichler, a lawyer practising in Dornbirn. 3. The Austrian Government (“the Government”) were represented by their Agent, Mr H. Tichy, Ambassador, Head of the International Law Department at the Austrian Ministry for European and International Affairs. The birth and death of the applicant’s son 4. The applicant became pregnant in 2006 and received medical treatment at the Feldkirch Regional Hospital ( Landeskrankenhaus – hereinafter, “the hospital”), a public hospital. 5. The prenatal examinations carried out in that hospital indicated that the foetus showed clear symptoms of “Prune-Belly-Syndrome” and thus would likely be born with a disability. 6. “Prune-Belly-Syndrome” is a birth defect which is classified as a rare disease, the cause of which is not yet known, although there are several theories. Essential characteristics are, inter alia, wrinkled skin over the abdomen, a lack of abdominal musculature, serious malformations of the urinary tract and undescended testicles. In addition, other malformations of the body may occur. It is possible to detect via ultrasound before birth whether a foetus shows these characteristics. 7. Apart from that preliminary diagnosis, the applicant did not have enough amniotic fluid in the womb. She was informed that her child would most likely not survive. The attending physician at the hospital, Dr Sch., spoke with the applicant concerning a possible need for a post-mortem examination of the body of her as yet unborn child, to clarify the exact cause of death but also to assess whether such a malformation could occur in another child (in particular the offspring of siblings already born). The applicant and her husband refused to agree to a post-mortem examination for religious reasons. They explained that, in accordance with their Muslim beliefs, they wished to ritually wash the corpse prior to the funeral. For that purpose, the corpse had to remain as unscathed as possible. 8. The applicant gave birth to her son, Y.M., in the hospital on 3 April 2007. It was a premature birth, which took place in the twenty-fifth week of the pregnancy. The child weighed less than 900 grams at that time. Y.M. received intensive medical care but died two days later on 5 April 2007 from a cerebral haemorrhage. 9. After Y.M.’s death, the applicant and her husband were asked again whether they would agree to a post-mortem examination. The doctors explained to her that that was necessary in order to determine the exact cause of death. Moreover, as the disease could possibly be genetic, it was in the interests of the child´s already born and future siblings to assess whether Prune-Belly-Syndrome was likely to arise in any future pregnancies. The applicant and her husband refused to give their consent. The primary physician Dr S. told them that it would be carried out nonetheless, in order to clarify the diagnosis. The post-mortem examination 10. On 6 April 2007, the post-mortem examination was performed at the hospital. The relevant provisions – section 25 of the Hospital Act ( Kranken ‑ und Kuranstaltengesetz – hereinafter “the Hospital Act”) and section 12(3) of the Dead Body and Funeral Act of the Land of Vorarlberg ( Vorarlberger Gesetz über das Leichen- und Bestattungswesen – hereinafter “the Funeral Act”) – do not specify that the consent of relatives of a deceased person is required in order for a post-mortem to be carried out, provided that it is necessary for the safeguarding of scientific interests ( wissenschaftliches Interesse ), in particular to clarify a diagnosis (see paragraphs 38 and 42 below). 11. A detailed post-mortem report was drawn up. It was noted that the parents had objected to the intervention, but that it had been performed nonetheless because of the uncertain pathology of several organs, which the paediatricians had not been able (in the absence of a post-mortem) to classify with complete certainty. The report confirmed the diagnosis reached before birth – namely that Y.M. had suffered from “Prune ‑ Belly ‑ Syndrome”. The report was initially not issued to the applicant. 12. During the post-mortem examination, practically all the internal organs were removed from the child’s body and preserved at the hospital for a comprehensive assessment. This was considered to be necessary because an accurate detection of the pathological changes of the organs is considered easier after formalin fixation. A large part of the urinary tract was removed, too, which meant that the sex of the child was not apparent anymore. The body was filled with cotton wool in order to soak up blood and other body liquids. 13. The applicant was informed that a post-mortem examination had taken place. She was upset, and on 8 April 2007, 5.10 h, she went to the police and reported that the hospital had examined her son’s body without her consent. 14. The hospital handed over their son’s corpse to the applicant and her spouse after 8 April 2007. They were not informed about the extent of the post-mortem. The applicant was under the impression that only a “small cut” ( kleiner Schnitt ) had been made. The corpse was completely dressed and was wearing a cap at the time. The face was haggard, but it was not discernible from the clothed corpse whether a post-mortem examination had taken place (and if so, how extensive it had been) or that organs had been removed. 15. The applicant and her husband thus believed that the body was in an appropriate state to be taken to Turkey and to be buried in accordance with their Muslim beliefs. Their deceased child was brought to their home village for the funeral. The transfer was organised by a Turkish association who obtained the necessary documents from the district authorities. There is no information in the file how and on which date this transfer was carried out. The funeral in Turkey of the applicant’s son 16. During the funeral ceremony, which took place at an unknown date in the applicant´s home village in Turkey, about 100-300 guests were present. The body of the child was undressed by the wife of the Hodja (Turkish for “learned man” – the religious person performing the ceremony) and the applicant herself. During that procedure, the two women noticed that the deceased child had undergone a full body post-mortem – that is to say the whole body and head had been cut open and sewn back together. It was noticeable that the internal organs of the child had been removed, as the body was stuffed with cotton wool. The genitals were not recognisable (see paragraph 12 above). Besides, the corpse was in a poor condition as a result of the decomposition that had already taken place in the meantime. 17. At the sight of the state of the child’s body, both women were left in a state of shock and the applicant fainted. She then started to scream and cry and was inconsolable. The guests rushed to see the body, resulting in turmoil. Since the genitals of the deceased child were no longer identifiable, the ritual washing could not take place (because there are different washing rituals for male and female deceased), and the funeral had to be cancelled. The applicant and her husband were reproached by the guests owing to the bad condition of the body. They had to leave their home village the next day. They stated that they had had incurred significant costs because the funeral ceremony had been halted. 18. The deceased child then had to be buried in another community, without the ritual washing and the ceremony required by the applicant’s Muslim faith. The applicant and her husband had to bear the additional costs of this funeral. The return of Y.M.’s organs 19. After the applicant returned to Austria, she asked the hospital that the organs of her deceased child be returned to her. The hospital initially denied that any organs from the body had been removed. Upon the intervention of the Vorarlberg Patients’ Ombudsperson ( Patientenanwalt ), on 24 April 2007 the hospital agreed to return some (but not all) of the removed organs, so that they could be buried with the rest of the body. 20. Only on 1 October 2007, upon further intervention by the Vorarlberg Patients’ Ombudsperson, did the applicant receive the remainder of the organs. She buried these, too, in her son’s grave in Turkey. The ensuing civil proceedings for damages 21. On 30 March 2010 the applicant lodged a civil claim for damages against the Vorarlberg Hospital Operating Company Ltd. ( Krankenhaus Betriebsgesellschaft mbH ), the owner of the hospital – namely for the costs of the halted burial ceremony, the trips to Turkey in order to bury the child’s organs after they had been returned, and compensation for non-pecuniary damage for mental pain and suffering, as well as the future costs of psychological treatment. She alleged that: her child’s body had not been treated with the appropriate dignity; the post-mortem had been performed despite her objections on religious grounds; and it had been in any case unlawful to remove the organs, as she had not agreed to their removal. She furthermore alleged a failure to comply with the doctors’ duty to properly inform her of the post-mortem on her child’s body and of its extent, which had caused her post-traumatic stress disorder. 22. The defendant responded that the post-mortem examination had been justified since (i) only histological proof of severe lung hypoplasia could have shown that the death could not have been prevented, and (ii) without such an examination, an absolute confirmation of the diagnosis of “Prune ‑ Belly-Syndrome” (as opposed to a similar kind of malformation) would not clinically have been possible. Moreover, an analysis of the reasons for the death of a newborn was a vital tool for lowering newborn mortality rates. In the defendant’s view, there had been no conduct on the part of the treating doctors that could have given rise to liability for damages. The first round of proceedings 23. In the first round of proceedings, the Feldkirch Regional Court ( Landesgericht ) allowed the applicant’s claim by a judgment of 9 July 2012. The court noted that it was true that the post-mortem examination had been necessary for a safe diagnosis of Prune-Belly-Syndrome because it could have been mistaken for another disease on the basis of the symptoms alone. A prerequisite for conducting a post-mortem on a child without the parents’ consent was, however, not only the existence of diagnostic uncertainty, but also a scientific interest in so doing. The court concluded that there had been no such scientific interest in respect of the present case. The post-mortem had only been carried out because the doctors had wanted to satisfy their curiosity ( Neugierde befriedigen ) about this very rare disease; however, that had not constituted proper justification for conducting a post-mortem examination without first securing the consent of the close relatives, pursuant to section 25 of the Hospital Act. 24. A psychiatric expert opinion ordered by the Feldkirch Regional Court concluded that the applicant was suffering from post-traumatic stress disorder, which was connected to the post-mortem of her deceased child and the manner in which she had found out about it. While the death of her newborn in itself had constituted a significant cause of stress, the applicant described the events at the child’s funeral as the trigger for a feeling of acute stress, which in turn had led to her post-traumatic stress disorder. The psychiatrist who examined her stated that the sight of the disfigured body must have significantly surpassed that which a non-medical professional would have expected. 25. The defendant lodged an appeal against that judgment with the Innsbruck Court of Appeal ( Oberlandesgericht ); the appeal was allowed on 8 November 2012. The Court of Appeal found that there had been a procedural defect, given the fact that the first-instance court had failed to obtain two expert opinions that it had ordered relating to the fields of pathology and neonatology. It therefore remained to be determined whether the post-mortem examination – which had clearly been carried out against the applicant’s will – had been permissible, within the meaning of section 25 of the Hospital Act. The case was remitted to the first-instance court in respect of that question, for a new decision. The second round of proceedings 26. In the second round of proceedings, the above-mentioned expert opinions were obtained by the Feldkirch Regional Court. 27. Dr V., an expert paediatrician, noted that there had been two reasons for conducting a post-mortem: firstly, to determine whether Y.M. had really been suffering from Prune-Belly-Syndrome, an illness not yet sufficiently explored, and second, as a measure of quality control in view of the intensive medical interventions that had been performed before and after his birth. Dr V. noted that neither the post-mortem report nor the personal file of Y.M. contained an indication regarding which scientific questions had been expected to be answered by the post-mortem or what methods had been used. It was not known whether the information obtained had been used for the furtherance of science – for example, whether it had been published. The expert concluded that the necessity for a post-mortem had possibly been indicated by the need to evaluate the intensive-care measures that the patient had received, but that there was no documentation confirming that in Y.M.’s file. The diagnosis of Prune-Belly-Syndrome could be confirmed through the post-mortem. However, it was not apparent whether the post-mortem had touched specific scientific questions or that it served the research into new forms of disease, their causal course or combating infant mortality. 28. Dr L., an expert pathologist, stated that Prune-Belly-Syndrome was a very rare, complex, insufficiently explored disease. According to Y.M.’s patient file, the reason for the post-mortem examination had been to clarify alterations in the belly, lungs and brain that had not been clearly identifiable. Under Austrian law, the post-mortem had therefore been required in order to clarify the quality of the diagnostic and therapeutic measures taken before his death. Dr L. found, moreover, that the post ‑ mortem had been carried out in an appropriate and professional manner and that a comprehensive report had been prepared. Filling the body with cotton wool or a similar material was necessary after a post-mortem in order to soak up blood and other body liquids. Removing the organs had been necessary in the interests of science, as malformations were more easily detected when the organs in question were preserved outside the body, which took between one and two days. In the case of post-mortem examinations of foetuses or deceased newborns, the removal and preservation of the organs was indispensable and therefore standard practice. Dr L. further explained that in the case of the Prune ‑ Belly ‑ Syndrome, the exact role ( Beteiligung ) of the organs was not sufficiently explored and therefore still needed to be documented. The body was usually released for burial immediately after the post-mortem examination, although the organs might still have to be examined. Waiting for the organs to be released would unnecessarily delay any subsequent funeral. He concluded that the provisional removal of Y.M.’s organs had been part of standard post-mortem procedure and thus lege artis. As to the state of the body at the funeral, Dr L. explained that the pictures on file were of bad quality and did not allow any exact evaluation. However, the fact that Y.M.’s corpse had been transported to Turkey without being preserved, and given that several days had passed between his death and the ceremony, the corpse must have shown signs of decay at that point. 29. On 13 August 2014 the Feldkirch Regional Court again allowed the claim and held that the hospital was to pay the applicant the full sum claimed in damages – namely 58,500 euros (EUR), the costs of the proceedings (EUR 29,105.52), and compensation for any future damage (such as the cost of future psychiatric care of the applicant) arising from the post-mortem examination of Y.M. It reiterated that there had been an indication that a post-mortem examination was needed because of the above-mentioned diagnostic uncertainty. Such an indication, however, did not mean that it was permitted to carry out a post-mortem examination without the consent of the deceased’s relatives. For such an examination to take place without the relatives’ consent, there had additionally to be a scientific interest in so doing under section 25 of the Hospital Act. Since it had not been asserted that there was any scientific interest in the post-mortem being conducted, it should not have been carried out against the will of the applicant and her husband. The court found that in the event that the post-mortem examination had been lawful, it would have been irrelevant that Muslim practice had demanded that the corpse remain intact. It furthermore held that even assuming that such a scientific interest had existed, the hospital staff would still have been obliged to inform the applicant in detail of how the post-mortem had been carried out (in particular of its scope) and to warn her of the external appearance of the body. The psychiatrist had stated in his expert opinion (see paragraph 24 above) that the applicant would most likely not have suffered post-traumatic stress disorder if she had at least been informed that a post-mortem examination had been carried out and that the organs had been removed. The court accordingly held that the unlawful behaviour of the doctors had caused the shocked reaction of the applicant, which is why the hospital was liable to pay damages. 30. On 4 December 2014 the Innsbruck Court of Appeal allowed an appeal lodged by the hospital and dismissed the applicant’s claim. It held that the applicant was to refund the hospital the costs and expenses for its legal representation in the amount of EUR 29,963.96 for the proceedings in the first instance, and EUR 2,832.96 for the appeal proceedings (thus EUR 32,796.92 in total). It found that the lower-instance court had not properly taken into account the two expert opinions on the post-mortem examination, which had concluded that it had in fact been performed in accordance with the law. The Court of Appeal noted that an indispensable prerequisite for the defendant to be held liable for damages was that doctors in its employ be shown to have acted unlawfully. The post-mortem examination had, however, been carried out lawfully because there had been a scientific interest in ascertaining that the diagnosis had been correct (for example, in view of the fact that “Prune-Belly-Syndrome” shared certain symptoms with other, similar complaints). Moreover, there had not been an obligation to inform the applicant of the state of her son’s body after the examination. The reason for the post-mortem had been, in particular, the unclear clinical diagnosis and the need to assess the quality of the pre- and postnatal treatment administered. It was irrelevant whether the results of the post-mortem had been used for the furtherance of scientific research or whether they had been publicised (which in the instant case they had not). The term “scientific interest” also included an interest in completing the personal file of the applicant’s son, Y.M., by confirming the initial diagnosis. The court furthermore held that the applicant had been informed by the hospital that the post-mortem would also be carried out without her consent (see paragraph 9 above). Concerning the removal of the organs, the court held that it was common knowledge that a post-mortem could also include the removal of organs, if necessary. In any event the applicant had not proved that the doctors had promised her, as she alleged, that the post ‑ mortem would only consist of a small four-centimetre-cut. The fact that the organs had only been returned to her later was irrelevant in that regard, as the applicant alleged that it was the events at her son’s funeral ceremony that had caused her post-traumatic stress disorder, not the late return of his organs. 31. The applicant lodged an appeal on points of law with the Supreme Court, repeating the arguments submitted in her previous appeals, and adding that her rights under Article 9 of the Convention had been violated. She requested the Supreme Court to institute proceedings before the Constitutional Court to review the constitutionality of section 25(1) of the Hospital Act, and to request a preliminary ruling from the European Court of Justice in that respect. The Supreme Court’s final decision 32. The Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s extraordinary appeal on points of law on 25 September 2015. It noted that according to the clear wording of section 25(1) of the Hospital Act and section 12(3) of the Funeral Act, the case’s lack of diagnostic clarity constituted an example of the kind of public and scientific interest that justified a post-mortem examination – even without the consent of the deceased’s relatives. Since the diagnosis in the case at issue could only have finally been confirmed by means of a post-mortem, the Innsbruck Court of Appeal had rightly taken the view that there had been a lack of diagnostic clarity, within the meaning of section 25 of the Hospital Act. The Supreme Court deemed that the relevant legal provisions were clear in that respect and that they therefore did not require further judicial interpretation. Moreover, the preparatory work on section 25 of the Hospital Act (see paragraph 39 below) showed that the aim of the legislature had been to enable the furtherance of scientific knowledge, without imposing a requirement that any knowledge thus acquired should then be, in a narrower sense, “scientifically processed” ( wissenschaftlich verwerten ). 33. As regards the alleged infringement of Article 9 of the Convention, the Supreme Court found that carrying out the post-mortem against the applicant’s will had constituted an interference with her rights under that provision. However, in the light of its importance for the development of medicine and in order to assess the quality of the medical treatment provided in the instant case, it had been in the interest of public health to eliminate any diagnostic ambiguities by carrying out a post-mortem. The post-mortem had thus pursued a legitimate aim justifying a possible restriction of the exercise of religion within the meaning of Article 9 § 2 of the Convention. The Supreme Court saw no reason to institute proceedings before the Constitutional Court to review the provisions in question, or to request a preliminary ruling from the European Court of Justice. 34. Turning to doctors’ duty to inform relatives of a post-mortem, the Supreme Court noted that the existence and scope of that duty depended on the circumstances of the individual case. It did not consider that its case-law (regarding the comprehensive medical duty to disclose information) had been applicable to the present case, as it had not affected the right to self ‑ determination of the patient himself. Moreover, the duty to disclose information was aimed at preventing any potential future damage. The Supreme Court conceded that the way in which post-mortem examinations were carried out, and the fact that organs were removed from the corpse in the case of a post-mortem carried out on a newborn, was not common knowledge, but it held that it did not appear unpredictable or highly surprising either. It found that doctors therefore rightly refrained from giving detailed explanations. In addition, the omission of such detailed explanations – which could also be burdensome for a relative – were not very likely to cause any psychological impairment to a relative of the subject of a post-mortem. Regard had to be had to the state of the body of the applicant’s son when it had been handed over to her, which appeared to have been much less shocking than its state at the funeral. The specific religious background of the case could not change that assessment. 35. The Supreme Court’s decision was served on the applicant on 20 October 2015. RELEVANT DOMESTIC LAW AND PRACTICE 36. Article 17 of the Basic Law ( Staatsgrundgesetz ) of 1867 reads: “Science and its teaching are free. ...” 37. Section 5a of the Hospital Act, as in force at the relevant time, concerned patients’ rights. It stipulated, among other things, that hospitals had to ensure that patients could exercise their right to clarification and information regarding their treatment options (including the risks in respect of those options). Upon a patient’s demand, medical information should be provided by a doctor in (as far as possible) a comprehensible and sensitive manner. 38. Section 25(1) of the Hospital Act stipulates that corpses of patients who have died in public hospitals shall be examined post mortem if a post ‑ mortem has been ordered by the sanitary police ( Sanitätspolizei ) or during criminal proceedings, or if it is necessary for the safeguarding of other public or scientific interests – in particular because the case is not diagnostically clear or there has been a surgical intervention. In all other cases, a post-mortem may only be carried out with the consent of the deceased’s closest relatives, unless the deceased agreed to it while still alive, pursuant to section 25(2) of the Hospital Act. In respect of each post ‑ mortem, a written statement shall be prepared and preserved in the medical history of the deceased (section 25(3) of the Hospital Act). 39. The preparatory work on section 25 of the Hospital Act (AB 164 BlgNR VIII. GP. 10; 1956) notes in this respect that the development of modern medicine was only possible through the opening of corpses of the deceased in hospitals in order to clarify beyond doubt the morphological causes of many diseases. The practical value of post-mortem examinations stemmed from the fact that the doctor treating the patient could not only review his or her own diagnosis and the therapy applied, but also determine the reasons for any failure thereof. Thanks to the fact that post-mortem examinations are a regular occurrence, the health authorities also obtain reliable information about the existence and frequency of individual diseases and causes of death and may thus take general measures designed to prevent or combat such diseases. In addition, the result of a post-mortem may turn out to be highly valuable for the relatives of the deceased, since the clarification of often minor additional findings may give rise to important conclusions pointing to peculiarities in the constitution of family members that encourage the development of certain diseases. If such peculiarities become known to the medical community, then it is possible to prevent unfavourable health developments at an early stage. 40. Even before the adoption of the Hospital Act, autopsy law had a long tradition in Austria. Since 1867, it is perceived as an integral part of the constitutionally guaranteed freedom of science (see paragraph 36 above). The motto “mors auxilium vitae” not only adorns many buildings housing university departments for anatomy and pathology, but expresses a long-standing concept of overriding importance of public interests in science and health care by excluding rights of individuals to object against an autopsy, at least if it is performed in a public hospital (see Kopetzki, C. Obduktionen im wissenschaftlichen Interesse: Rechtlicher Rahmen und verfassungsrechtliche Grenzen, in Kopetzki/Körner (ed.), Leichenöffnung für wissenschaftliche Zwecke (2021), p. 88). The scope of “scientific interests” in section 25 of the Hospital Act (see paragraph 38 above) is subject of a vivid academic discussion ( ibid., pp. 106 onwards). 41. Under section 3(2) of the Funeral Act, it is for relatives – unless the deceased issued instructions before his or her death – to determine in particular the nature and place of the funeral and to give their consent to an opening of the deceased’s corpse that has not been ordered by the Public Prosecutor’s Office or the local mayor or is not provided for in section 12(3) of the of the Funeral Act (see below). Unless the deceased issued an order to the contrary while still alive, his/her relatives may, instead of a funeral, leave the corpse to an institution devoted to scientific or medical research and education, for the purposes of determining the causes of diseases or of research into methods of curative treatment. 42. Under section 12(3) of the Funeral Act, a post-mortem of the corpse of a patient who has died in a public hospital must be carried out, inter alia, if the opening of the corpse in question is necessary in order to safeguard public or scientific interests – in particular if the case is diagnostically unclear or if there has been a surgical intervention. 43. Under section 13(4) of the Funeral Act a written report must be prepared regarding the opening of a corpse, which apart from the deceased’s personal details, must contain the pathological findings in respect of the corpse and the cause of death. The written report must be signed by the doctor who carried out the post-mortem. If a patient died in a hospital and his or her corpse was opened, a copy of the relevant written report shall be annexed to his or her medical history. Under section 13(5) the opening must be carried out in such a manner as not to constitute a risk to health, nor to violate the sense of respect for the deceased’s remains. Under section 65, anyone who violates the above-mentioned provisions of the Funeral Act shall be punished by a fine of up to EUR 2,000. 44. An ordinance issued by the Sanitary Authority of the Vorarlberg Regional Government on 14 January 2003 aimed at combating infant mortality expressly stipulates that: “... in most cases of infant death, a sanitary-police post-mortem is necessary from a professional point of view, except where the cause is clearly discernible (for example, in the case of accidents [or] for forensic reasons ...). In all other cases, the cause of death in particular (especially in the case of babies [who die] away from hospital – for example, [of] sudden infant death syndrome) can be determined only by opening the corpse ... A circle of experts will then consider the adduced documents, information and data ..., [and] – on the basis of an analysis and discussion of each individual instance of an infant’s death – will draft proposals for the further reduction of infant mortality.” 45. Section 30(2) of the Hospital Act of the Land of Vorarlberg ( Vorarlberger Gesetz über Krankenanstalten ) stipulates that hospitals shall ensure that patients are able to exercise their right to receive an understandable and sufficient explanation and information regarding the diagnosis and possibilities for treatment (and attendant risks) in order that they may be able to actively participate in decisions affecting their state of health. Information about their state of health and the progress of treatment must be provided to them (or, at their request, to a person that has their confidence) by a physician in – as far as possible – an easily understandable and gentle manner, having regard to the personality of the patient. Moreover, patients are entitled to inspect their own medical records and to receive a copy thereof, to careful and respectful treatment and (should they so request) to pastoral care and psychological support. 46. In order to safeguard patients’ rights and interests, there is an Information and Complaints Office in each hospital in Vorarlberg, in accordance with section 3 of the Protection of Patients and Clients Act of the Land Vorarlberg ( Vorarlberger Patienten- und Klientenschutzgesetz ); such offices have to consider complaints about accommodation, care and health treatment, examine suggestions for improvement, and provide information about patients’ stays in the hospital in question. In addition, an independent Patients’ Ombudsperson (who is not subject to any kind of control) and an arbitration commission tasked with hearing disputes involving damage caused to patients and clients (hereinafter, “the Arbitration Commission”) have been established. Under section 5 of the Act, the Patients’ Ombudsperson has the task of providing advice and information to patients and clients (and persons enjoying their confidence) free of charge, to consider complaints about accommodation, care and health treatment, to assist patients and clients before the Arbitration Commission (section 7 et seq.) and to grant patients compensation for injuries or damage caused by the hospital (section 6). | The applicant’s son was born prematurely and died two days later. He had been diagnosed with a rare disease so the treating doctors decided that a post-mortem examination would be necessary to clarify the diagnosis. The applicant and her husband refused on religious grounds and explained that they wished to bury their son in accordance with Muslim rites, which required the body to remain as unscathed as possible. Despite their objections, the post-mortem was performed and practically all the child’s internal organs were removed. The applicant, not having been informed of the extent of the post-mortem, only realised the actual extent during the organised funeral in Turkey which consequently had to be called off. The applicant unsuccessfully brought civil proceedings for damages. |
336 | Demonstrators | 2. The applicants are Georgian nationals belonging to the Muslim minority. Their details are set out in the Appendix. The applicants were represented by Ms T. Mikeladze and Ms M. Begadze, lawyers practising in Tbilisi, and Mr P. Leach, Ms J. Gavron, and Ms J. Sawyer, lawyers practicing in London. 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. THE APPLICANTS’ ARREST AND DETENTION ON 22 OCTOBER 2014 Events of 22 October 2014 in the village of Mokhe and the applicants’ arrest Events of 22 October 2014 in the village of Mokhe and the applicants’ arrest Events of 22 October 2014 in the village of Mokhe and the applicants’ arrest 5. In the summer of 2014 several discussions took place between the Muslim community of the municipality of Adigeni and the local government authorities on the status of an old building in the village of Mokhe (“the disputed building”), asserted by the former to be an ancient mosque. Eventually, the municipal authorities decided to reconstruct the building and to convert it into a public library. 6. On 22 October 2014 a representative of a company chosen by the municipality to implement the reconstruction of the building informed the police, in writing, that the company had attempted to start the work on 18 October 2014 but had failed, owing to the hostility that it had encountered from the local Muslim community. The police were therefore asked to ensure the peaceful implementation of the work, which had been scheduled to begin that same day. 7. According to the case-file material, between sixty and one hundred police officers and several representatives of the local municipality gathered around the disputed building at around 10 a.m. on 22 October 2014 as the reconstruction work commenced. Members of the local Muslim community, between fifty and one hundred local residents also gathered at the site to protest against the conversion of the disputed building into a library. The police formed a cordon separating the protesters from the local officials and the disputed building. Some local residents of Orthodox Christian faith also gathered nearby but did not personally participate in the protest (see paragraph 19 below ). The first applicant, a village trustee ( რწმუნებული ) appointed by the municipality to represent the local community, went to the disputed building together with his father, the second applicant. The third applicant joined the gathering from a neighbouring village. The fourth applicant worked at a nearby school and apparently became involved in the events that ensued after he exited the school building. Those events, which resulted in the applicants’ arrest, remain disputed between the parties and were the subject of three separate inquiries (see paragraphs 17-37 below). The events attracted wide media coverage, the attention of the Public Defender of Georgia and that of the Human Rights Watch (see paragraphs 42-43 below). 8. According to the applicants’ version of events, the police used excessive force during the arrests and shouted insults towards the applicants and other protesters, calling them (among other things) “Tatars” ( თათარი ) – a term which is alleged by the applicants to have been uttered as an insulting expression insinuating, in their submission, that their Muslim faith was incompatible with their being Georgian. The alleged violence allegedly continued at the police station. 9. According to the Government’s version of events, the applicants and other individuals resorted to physical and verbal violence and tried to break the police cordon in order to occupy the disputed building. The applicants were arrested for resisting the lawful orders of the police and breaching public order; the police did not use either excessive force or make any derogatory remarks. 10. In total, fourteen individuals were arrested following the events of 22 October 2014. The first three applicants were arrested on the criminal charge of resisting the lawful orders of the police (see paragraph 38 below). The remaining eleven persons, including the fourth applicant, were arrested on administrative-offence charges of minor hooliganism and resisting the lawful orders of the police (see paragraph 17 below). 11. On 23 October 2014 the first three applicants were released on the basis of a prosecutor’s order, on the grounds that their detention was not necessary for the pursuit of the criminal proceedings against them. The fourth applicant was also released that day, on the basis of a decision delivered by a court as part of the administrative-offence proceedings against him (see paragraph 17 below). Applicants’ state of health 12. According to the arrest and personal search report dated 22 October 2014 issued in respect of the first applicant and signed by him, he was arrested at 2.47 p.m. that day and was brought to Adigeni police station. The report, drafted by police officer B.A., noted that the first applicant had redness around the left eye, an excoriation on one wrist, and a bump on the head, that he had explained that those injuries had been received during his arrest, and that he had refused any medical assistance. 13. At 9.20 p.m. that same evening the first applicant complained of a headache, disorientation, and pain in the upper extremities. He was given painkillers by a paramedic. According to a medical note issued by a civilian medical clinic where the first applicant was brought soon after the paramedic’s visit, the first applicant was examined by a surgeon, who took note of his complaint regarding pain in the neck area and observed the presence of a haematoma around the left eye. The doctor remarked that the patient “could not explain the source of the injuries.” A neuropathologist belonging to the same clinic noted the first applicant’s injuries and complaints of pain, adding that the first applicant had explained that the injuries had been received “as a result of a fall.” 14. At 11.30 p.m. the first applicant was placed at a temporary detention centre and examined by a doctor. The injuries recorded in the arrest and personal search report were noted on the relevant register, with a remark that the first applicant had made no complaints, asserting that his injuries were the result of his resisting police officers during his arrest. 15. The second applicant’s arrest and search report, signed by him, recorded the time and circumstances of the arrest as being the same as those of the first applicant’s arrest (see paragraph 12 above). No physical injuries were recorded in the report, but it stated that the second applicant had received assistance from paramedics, at his own request. The following morning he apparently complained of difficulty in breathing, emotional instability, and anxiety. The duty doctor of the temporary detention centre gave him medication. 16. The documents concerning the third and the fourth applicants’ arrest and subsequent detention, duly signed by them, recorded no signs of injuries (except for a three-day old excoriation on the third applicant’s left thumb) or other distress. Those documents indicated that the third and the fourth applicants had voiced no complaints. INVESTIGATION INTO THE EVENTS OF 22 OCTOBER 2014 Administrative-offence proceedings involving the fourth applicant Administrative-offence proceedings involving the fourth applicant Administrative-offence proceedings involving the fourth applicant 17. On 23 October 2014 a first-instance court found the fourth applicant and ten other arrested individuals (T.I., R.I., N.I., T.G., A.I., Z.V., B.G., M.V., J.M., and M.I.) guilty of minor hooliganism and offering resistance to lawful orders issued by the police (see paragraph 40 below), without elaborating in detail on the individual responsibility of the persons concerned as regards either of those charges. They were fined 250 Georgian laris (GEL – approximately 112 euros (EUR) at the time) each, and the court ordered their release from detention. The fourth applicant’s ensuing appeal, in which he claimed, among other things, that the court had unduly disregarded eyewitness statements about insulting and discriminatory language and excessive force having been used by the police during the arrests, was dismissed as unsubstantiated by the Tbilisi Court of Appeal. The appellate court’s decision was final. Criminal investigation against the first, second and third applicants 18. On 22 October 2014 criminal investigation no. 012221014001 was opened against the first three applicants in respect of their having allegedly resisted the police officers with the aim of interfering in their efforts to uphold public order. 19. On 22 and 23 October 2014 the Adigeni police investigators, including those involved in the applicants’ arrest and detention, questioned seven onlookers, apparently representatives of the Orthodox Christian community of the village (see paragraph 7 above). According to these witnesses, on 22 October 2014 the Muslim population of the village, who had gathered near the disputed building, became physically and verbally aggressive in the face of calls from the police officers for calmness, attempting to break the cordon formed by the officers in order to prevent the reconstruction work in that building from taking place. The second applicant was arrested after verbally insulting the police. The first applicant was also arrested because he had broken the windshield of a police car that had been driving the second applicant to a police station. Then the third applicant’s behaviour became aggressive and he attempted to halt the arrest of the first two applicants. As a result, he was also arrested. Neither the protesters nor the police were injured. 20. On 23 October 2014 G.P., an investigator from the Adigeni police station (later identified by the first applicant as one of the two officers allegedly involved in his ill-treatment – see paragraph 24 below) undertook, with the help of an expert, an inspection of the area in which the applicants had been arrested and of the police car driven by police officer B.A. (the second officer identified by the first applicant – see paragraph 24 below). According to the relevant reports, the police car had its front bumper broken off, the front windshield and one side window damaged, the window on the right rear door broken, the right rear door dented, and the right-side mirror broken off. A stone (in which were embedded fragments of glass), a broken wing mirror and fragments of car window glass were also retrieved. An expert valuation set the value of the damage at 1,100 Georgian laris (GEL) (approximately EUR 594 at the time). 21. On 24-25 and 30-31 October and 1 November 2014 the Adigeni police investigators, including G.P., questioned sixteen officers who had participated in the events of 22 October 2014. B.A. was questioned by G.P. According to the police officers’ account, the Muslim population of the village tried, exhibiting particularly aggressive behaviour and language, to force their way into the disputed building. The second applicant called on the gathered people to violently break through the police cordon and occupy the building, and he hit the hands of the policemen forming the cordon in an attempt to break it, swearing at them as he did so. It was decided to arrest him. He was put in a car driven by B.A. Seeing the arrest, the first applicant threw a stone at the police car and then hit the windshield by the stone, damaging the car. He was then arrested. The first two applicants, joined by the third applicant, aggressively resisted arrest. The officers noted that they had not used excessive force or insulting language and reiterated that they all had worn uniforms. The officers stated that they had not received any injuries, and that they therefore did not need to undergo a medical examination. 22. On 5 November 2014 the first three applicants and seven other individuals (T.I., B.G., N.I., T.G., J.M., M.I., and Z.M.) complained to the Chief Prosecutor’s Office of the police’s use of derogatory language (referring to the Muslim population gathered at the site by an allegedly derogatory term “Tatar” and swearing at them on that account – see paragraph 8 above) and of excessive force by the police both during their arrests and at the police station on 22 October 2014. According to the complaint, the second applicant had been arrested without good cause, and while trying to contact journalists from the police car, he had been physically restrained by having his arm twisted, with telephone forcibly taken away. As for the first applicant, he had approached that car in order to prevent the latter from driving through the population, which had been blocking its way. In view of the fact that one man had fallen to the ground and the car had not shown any signs of stopping, the first applicant had kicked the car. The first applicant had then been severely beaten and arrested. He had also been physically and verbally assaulted at the police station. The third applicant complained that he had been trying to assist a fallen individual when approximately seven officers had approached and started beating him. This had lasted for approximately ten minutes and had continued in the police car following his arrest. It was alleged that the police had used threats to persuade the detained individuals to sign the respective arrest and detention reports, and had used discriminatory and insulting language on account of the detainees’ religion. It was requested that a criminal investigation into the above complaints be opened and carried out by the prosecutor’s office rather than the police implicated in the events. The complaint was accompanied by statements signed by the individuals in question, which had been recorded by the organisation representing them. 23. On 17-19 November 2014 an investigator of the Adigeni police station questioned the above individuals, with the exception of the three applicants. The seven individuals were warned that they might be held criminally liable should they refuse to testify or give an untruthful or a contradictory account (see paragraph 39 below). According to the printed witness statements duly signed by the relevant individuals, they refused to have a lawyer attend the procedure. All the witnesses thus questioned indicated that they had not personally experienced or witnessed any physical or verbal assault undertaken by the police officers either during the arrests or at the police station on 22 October 2014, and that the population gathered at the site of the events had tried to break the police cordon. The witnesses stated that they had “disobeyed the lawful orders of the police” to back down and had been arrested as a result. As regards the earlier statements submitted on 5 November 2014 (see the previous paragraph), they submitted that, having dictated their account to their representatives, and having explained to the latter that they had only heard about incidents of physical and verbal assaults, they had signed the resulting written statements without having read the content, trusting that they were identical to the oral accounts they had given. 24. On 21-22 November 2014 the first three applicants were questioned by an investigator of the Adigeni police station in relation to the criminal investigation against them. The procedure was attended by the applicants’ lawyer. The applicants largely reiterated the complaints that they had lodged on 5 November 2014 (see paragraph 22 above). The first applicant added that at the police station he had been taken to a separate room and physically and verbally assaulted by officers G.P. and B.A., as well as by a third policeman, unfamiliar to him, who had punched him in the head. The second applicant submitted that his reminder to the police of their obligations under the antidiscrimination legislation had prompted his arrest. While in the police car, B.A. had instructed other officers to take the second applicant’s phone away, saying, according to the second applicant, “take the phone from him, [screw] his Tatar mother ...”. As he had been in the process of being physically restrained, he had been unable to breathe easily and had broken a side window by kicking it with his leg. At the police station, his son had stood handcuffed facing the wall and G.P. had punched him, saying “now we will take care of you” and had taken him to a separate room. Noises had begun to emanate from that room, including those of the first applicant asking the officers not to kill him, which had prompted derogatory phrases of a religious nature in reply. Later he had seen his son’s injuries. Watching his son’s treatment had caused the second applicant anguish, leading to a rise in his blood pressure, and paramedics had been called. The third applicant stated that as he had been trying to help another villager rise to his feet while the latter was being dragged by a policeman, he had also been arrested by approximately seven officers, who had started beating him, targeting his face and body. He could not identify any of the officers. While he had not been personally assaulted at the police station where he had stood handcuffed “on the side of the wall”, he had heard from a separate room the sound of the first applicant screaming at someone not to kill him; he stated that he would be able to identify, if confronted with him, one of the policemen who had insulted the detainees at the police station by referring to them as “Tatars” in a derogatory manner. 25. Several other investigative measures appear to have been undertaken in 2015. Workers involved in the renovation of the disputed building stated that the Muslim population gathered at the disputed building had behaved aggressively towards the police, who had tried to maintain peace. Doctors who had observed the applicants upon their admission to a temporary detention centre stated that none of the applicants had had any complaints regarding the police, with the first applicant explaining his injuries by referring to his having resisted the police officers. As can be seen from the case-file material, on different dates in 2021 various witnesses were questioned anew. No new information appears to have transpired. 26. The criminal investigation against the first three applicants is still ongoing. Criminal investigation into the four applicants’ allegations of ill ‑ treatment 27. On 2 December 2014 a regional prosecutor decided to disjoin criminal case no. 012221014001 into two sets of proceedings: the existing investigation, to continue in respect of the offence allegedly committed by the applicants against the police officers, and a new case, no. 013021214003, concerning the alleged exceeding of official powers by the police, under Article 333 of the Criminal Code (see paragraph 38 below). 28. On 17 December 2014 the fourth applicant’s signed complaint was sent to the regional prosecutor. According to that document, the fourth applicant worked as a librarian at a public school in the village of Mokhe. On 22 October 2014, at about 2 p.m. he left the school building located near the disputed building and asked the local Muslim population why the second applicant had been arrested. He was soon approached from behind by four policemen and was beaten for about a minute, while some policemen yelled derogatory slurs. He was arrested and driven to the police station. Subsequently no ill-treatment took place personally against him, but he saw the first applicant being taken to a separate room at the police station, and heard the noise and screams that followed, which he understood to have been caused by the first applicant being beaten. According to the fourth applicant, he also signed the report of his arrest under duress, and subsequently carried signs of physical injuries on his back and suffered pain which lasted for two days; he stated that he was unaware as to why those injuries were not reflected in the medical documents. 29. Between 17 and 26 December 2014 a prosecutor questioned the individuals who had been prosecuted as part of the administrative-offence proceedings (with the exception of the fourth applicant – see paragraph 17 above), some of whom also appear to have been questioned as part of the criminal proceedings against the first three applicants (see paragraphs 22-23 above). The majority of those individuals mentioned that they had personally heard statements such as “[screw] your Tatar mothers” during arrests without having seen who exactly had uttered those words. M.I., T.G. and A.I. stated that derogatory remarks had continued to be made at the police station, and that they had felt humiliated on that account. M.I. furthermore stated that he had been brought to the police car while having his throat squeezed by a policeman, despite a lack of resistance on his part, and that he had voiced all those allegations before the first-instance court during the administrative-offence proceedings. R.I. stated that the second applicant had been calmly conversing with the policemen when suddenly someone had said that he was talking too much and had to be arrested. This had aggravated the tension on the ground. One witness mentioned having seen the fourth applicant with torn clothes, and another noted having heard that the third applicant had been beaten. It was noted that the first applicant’s throwing of a stone at a police car had irritated the policemen, who had started beating him on the spot while using derogatory language. J.M. stated that he had attempted to take photographs and videos of the protest but that he had been ordered by a policeman to stop filming. 30. Four witnesses (M.I., T.G., A.I. and R.I.) noted having heard the first applicant’s screams while being in a separate room of the police station; they believed that the screaming had been due to his being beaten. One witness (Z.V.) stated that the first applicant had been taken to another room at the police station, and had emerged later with a red face, leaving the impression that he had been beaten, but noted that he had not heard the first applicant’s cries coming from that room. M.I. and A.I. also submitted that the first applicant’s face had already been red, including around the eye, when he had been placed in the police car during his arrest. Another witness (J.M.) mentioned having arrived at the police station at a later stage and having noted the first applicant’s facial redness at the police station, believing it to have been a sign of his having been beaten. 31. Three witnesses (N.I., B.G., and T.I.) stated that they had not witnessed the first applicant or anyone else being ill-treated, and that they had not heard any derogatory remarks being made during any arrests or at the police station. M.V. denied having witnessed any physical ill-treatment of any of the detainees, but noted that he had heard insulting and derogatory remarks being uttered by the police while they had been at the building at the centre of events. 32. On 22 and 23 January 2015 a prosecutor questioned the four applicants in the presence of their lawyers. They largely reiterated their earlier accounts (see paragraphs 22, 24 and 28 above). The first applicant did not mention the third policeman referred to in his statement of 21 November 2014 (see paragraph 24 above). The third applicant submitted that he had been beaten during his arrest but had only been slapped in the face in the police car. The fourth applicant stated that he had been beaten for two or three minutes, but that he could not identify the offenders. 33. On 13 March 2015 an expert examination of the first applicant’s injuries (“bruises on the body area, excoriations on the left wrist, a swollen area (bump) on the head, haematoma in the left eye area”) was carried out on the basis of the documents contained in his case file (see paragraphs 12 ‑ 14 above). According to the expert, the injuries must have been inflicted by a blunt object, and whether assessed separately or together, were of minor severity, not causing any deterioration in the first applicant’s health. 34. Between June and August 2015 the prosecutor questioned nine additional witnesses who had been at the disputed building on 22 October 2014. They stated that neither the police nor the Muslim population had been aggressive initially, but that the second applicant’s arrest had been followed by heightened tensions, the first applicant breaking a police car windshield, and arrests of other individuals, along with insulting phrases being uttered in respect of the Muslim population. One witness stated that she had been hit in the back by the police and that she had seen the officers insult and beat the fourth applicant during his arrest, and that the latter had tried to resist the officers. Another stated that he had witnessed the third applicant’s arrest and physical ill-treatment by the police officers. The prosecutor questioned various other witnesses, including the doctors, police officers and other individuals who had already been questioned as part of the criminal investigation against the applicants. 35. As can be seen from the material submitted by the Government, on different dates in early 2021 the prosecutor questioned anew almost all the witnesses who had given statements on several occasions in the past. On 13 April 2021 the prosecutor established that the case-file material demonstrated that the first applicant had been physically and verbally ill ‑ treated by officers G.P. and B.A. at the police station. As regards that physical ill-treatment, the prosecutor specified that the officers had punched and kicked the first applicant several times. No clarification as regards the verbal assault, apart from the prosecutor stating that the officers had insulted the applicant, was made. The document stated that the prosecutor’s decision to accord him victim status was based on the presence of physical injuries resulting from ill-treatment. 36. On the same day – 13 April 2021 – G.P. and B.A. were charged with exceeding their official powers by using violence, an offence under Article 333 § 3 (b) of the Criminal Code (see paragraph 38 below), towards the first applicant. By that time they were no longer working for the police. The charges were based on the testimony given by the applicants, the witness statements of J.M., Z.V., M.I., T.G., A.I. and R.I. (see paragraphs 29-30 above), the material relating to the first applicant’s arrest and detention, the report of the above-mentioned expert examination, and other evidence contained in the case file. The former officers availed themselves of their right to remain silent, and the criminal proceedings against them are ongoing. 37. It does not appear that any progress was made in respect of the investigation concerning the complaints of the remaining three applicants. | The applicants, four Georgian nationals, had been arrested at a gathering by the local Muslim community against the conversion of an ancient mosque into a library. They had been released the next day. The police alleged that they had resisted their lawful orders, and denied making any derogatory comments, while the applicants brought complaints of ill-treatment against the police officers. The case concerned mainly the applicants’ complaints that, during their arrests and detention, they had been physically and verbally assaulted by the police, who had used discriminatory language, and that the criminal investigation into their complaints had been ineffective. |
759 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | 2. The applicant association was founded in 1992 and has its registered office in Sofia. It was represented by Mr A. Kashamov, a lawyer practising in Sofia. 3. The Government were represented by their Agent, Ms V. Hristova, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant association’s legal status 5. The applicant association was registered as a non-profit legal person in 1992 in accordance with the Persons and Family Act 1949 (see paragraph 35 below). Its main goals were to work towards the resolution of environmental problems in Bulgaria and to disseminate information about the environment. 6. On 1 January 2001 the Non-Profit Legal Persons Act 2000 came into force (“the 2000 Act”, see paragraph 36 below). It provided that legal entities registered under the previous regime were to preserve their legal status under the new law without the need to apply for new registration. 7. In April 2005 the applicant association sought to be included in the Ministry of Justice’s central register of non-profit legal persons acting for the public benefit. 8. In May 2005, citing the expiry of the three-year statutory time-limit for registration laid down in the 2000 Act (see paragraph 36 below), the Ministry of Justice refused the applicant association’s request for entry in the register. 9. The applicant association remained registered only in the register of non-profit legal persons. Background 10. The Kozloduy Nuclear Power Plant (“the KNPP”) is the only nuclear power plant in Bulgaria. It is a single-member joint-stock company whose shares are wholly owned by the State. 11. The KNPP has six pressurised water reactors. The first four units were shut down between 2002 and 2006 as one of the preconditions for Bulgaria’s accession to the European Union (“the EU”). Units 5 and 6 came into operation in 1987 and 1991 respectively. In 2017 the service life of unit 5 was extended until 2027. In 2019 the operational licence for unit 6 was also extended until 2029. 12. In July 2014, following a request made by the KNPP in the context of an investment proposal to extend the service life of units 5 and 6 of the nuclear power plant, the Minister of the Environment and Water decided that it was not necessary to carry out an environmental impact assessment in connection with the proposal. 13. In August 2014 a non-governmental organisation, the Coalition for Sustainable Development (“the CSD”), sought judicial review of the Minister’s decision before the Supreme Administrative Court (“the SAC”). 14. In February 2015 the applicant association requested leave to join the proceedings as an interested party. 15. On 18 March 2015 a three-judge panel of the SAC declared that request inadmissible. The court noted that according to section 1, subsection 30, of the supplementing provisions of the Environmental Protection Act 2002 (“the EPA”; see paragraph 38 below), the Minister’s decision was an individual administrative act ( индивидуален административен акт ) and not a general administrative act ( общ административен акт ). Therefore, no third party could join the proceedings under Article 182 § 3 of the Code of Administrative Procedure 2006, invoked by the claimant (see paragraphs 45-46 below). Instead, the applicant association, which was to be regarded as being among the “members of the public concerned” ( засегната общественост ) within the meaning of section 1, subsections 24 and 25, of the supplementing provisions of the EPA (see paragraph 40 below), could have lodged an individual judicial review claim within fourteen days from the date of publication of the impugned decision (see paragraph 38 in fine below). The court found that, as that decision had been published on the Ministry’s website on 25 July 2014, at the time the applicant association’s request to intervene was lodged the fourteen-day time-limit for seeking judicial review had already expired. 16. The applicant association did not appeal against that decision. 17. On 28 October 2015 the three-judge panel of the SAC found that the Minister’s decision was lawful and dismissed the legal challenge brought by the CSD. It also ordered the CSD to pay 300 Bulgarian levs (BGN, approximately 150 euros (EUR)) for the Environment and Water Ministry’s legal representation by an in-house lawyer, and BGN 30,000 (approximately EUR 15,000) in costs incurred for the KNPP’s legal representation. 18. The applicant association and the CSD lodged an appeal on points of law with a five-judge panel of the SAC. 19. On 17 March 2016 a five-judge panel of the SAC found the applicant association’s appeal on points of law inadmissible. The court noted that the association had not taken part in the administrative proceedings. It had also failed to bring a separate judicial review claim under the EPA. Likewise, it had not been a party to the proceedings before the first-instance court, since its request to join those proceedings had been dismissed by the court. The applicant association had further failed to challenge the court’s decision of 18 March 2015 (see paragraphs 15-16 above) within the statutory time-limits. It therefore had no right to appeal on points of law against the first-instance judgment. 20. On the merits, the SAC upheld the court’s ruling, fully agreeing with the three-judge panel as to the lawfulness of the Minister’s decision. It also went on to order the CSD to bear the costs incurred for the defendants’ legal representation in the cassation proceedings. It awarded the Ministry BGN 300 (approximately EUR 150) for its legal representation by an in-house lawyer, and awarded BGN 18,000 (approximately EUR 9,000) to the KNPP in respect of lawyer’s fees. Reopening Of THE proceedings 21. On an unspecified date in 2016 the applicant association sought the reopening of the proceedings before a seven-judge panel of the SAC. Relying on Article 239 § 5 of the Code of Administrative Procedure 2006 (see paragraph 47 below), it submitted that its right of access to a court had been breached by the SAC’s refusal to admit its appeal on point of law for examination. 22. On 29 September 2016 the SAC held a hearing in which it heard the parties without collecting new evidence. The applicant association’s lawyer argued that the association had been denied the right to lodge an appeal on points of law and to participate as a party to the proceedings concerning the Minister’s decision not to carry out an environmental impact assessment on extending the service life of the nuclear power plant’s reactors. That matter concerned the general public and the SAC had already accepted that the applicant association could be regarded as a member of the public concerned within the meaning of the EPA (see paragraphs 15 above and 40 below). Consequently, the association had a separate right to participate in the proceedings on points of law. 23. The KNPP’s lawyer pleaded that the applicant association’s request for reopening was inadmissible. She also sought to be awarded the costs for the company’s legal representation in the proceedings for reopening initiated by the applicant association. In reply, the applicant association’s lawyer objected, arguing that the costs claimed were excessive. He pointed out that the subject matter of the proceedings concerned the citizens’ right to a clean and healthy environment and not the price of the nuclear power plant’s reactors. Allowing the costs claim as in main proceedings thus amounted to a direct violation of Article 6 of the Convention. 24. On 24 October 2016 the seven-judge panel of the SAC dismissed the request for reopening. It noted that the applicant association’s request for leave to join the proceedings had been refused by the SAC’s decision of 18 March 2015 (see paragraph 15 above). Since that decision had not been appealed against it had become final. The issue with regard to the applicant association’s participation in the proceedings had thus been finally adjudicated and the ruling was binding on the courts in both the cassation proceedings and the proceedings for reopening. The court went on to state that no breach of the rules of procedure had occurred on the basis of which the applicant association could be considered to have been deprived of its right to take part in the proceedings. 25. The SAC also ordered the applicant association to pay BGN 12,000 (approximately EUR 6,000) of the amount of BGN 24,000 (approximately EUR 12,000) claimed by the KNPP in lawyer’s fees for the reopening proceedings. It ordered the association to pay the minimum remuneration provided for in the Regulation, namely BGN 300 (approximately EUR 150; see paragraph 51 below) for the Ministry’s legal representation by an in ‑ house lawyer. In determining the amount of the costs, the SAC held: “Given the outcome of the case, the costs are to be borne by the claimant and should be awarded in favour of the defendants in accordance with the claims, submitted in a timely manner, in the amount of 300 Bulgarian levs – the minimum remuneration for a lawyer determined under the Regulation adopted pursuant to section 36, subsection 2 of the Bar Act – for the representation of the Ministry of the Environment and Water. The court finds the claimant’s objection to the allegedly excessive amount of the lawyer’s fees paid by the KNPP to be justified in view of the actual factual and legal complexity of the case, and accepts that they [the lawyer’s fees] should be awarded in the amount of 12,000 Bulgarian levs.” OTHER REQUESTs for Reopening of the ProceedIngs 26. In two separate sets of proceedings the CSD also sought the reopening of the proceedings on the grounds that newly discovered evidence had emerged which could significantly alter the outcome of the case. The applicant association also took part in those proceedings, supporting the CSD’s requests. 27. Both requests were rejected by a seven-judge panel of the SAC, on 14 July 2017 and 18 December 2017 respectively. In view of the outcome of the proceedings, in the first set of proceedings the SAC ordered the CSD to pay BGN 200 (approximately EUR 100) for the Ministry’s legal representation by an in-house lawyer, and BGN 5,000 (approximately EUR 2,500) of the amount of BGN 24,000 originally claimed by the nuclear power plant in costs for the KNPP’s legal representation. 28. In the second set of proceedings the SAC awarded BGN 200 (approximately EUR 100) for the Ministry’ legal representation by an in-house lawyer, and BGN 2,000 (approximately EUR 1,000) of the amount of BGN 21,000 (approximately EUR 10,500) originally claimed by the nuclear power plant in costs for the KNPP’s legal representation. ENforcement proceedings against the Applicant associAtion 29. Meanwhile, on 27 October 2016, at the request of the KNPP, the SAC issued a writ of execution against the applicant association for an amount of BGN 12,000 (approximately EUR 6,000). 30. In December 2016 enforcement proceedings were opened against the applicant association. A bailiff collected a total sum of approximately BGN 34 (approximately EUR 17). 31. On 26 April 2017 the bailiff scheduled a date for carrying out an inventory of the applicant association’s movable property. 32. On 18 April 2018 the summons officer who was sent to deliver the notice for voluntary compliance recorded on the summons that the debtor association could not be found at its registered address and that the premises were occupied by a State institution. 33. At the time of the latest information from the parties the enforcement proceedings against the applicant association were still pending. | The applicant association, a non-profit legal person working to solve environmental problems in Bulgaria, had been ordered to pay legal costs to a nuclear power plant in the amount of 6,000 euros in proceedings for the reopening of a civil trial. It submitted that these costs had been excessive. |
491 | Family-allowance payments | 2. The applicants were born in 1974 and 1966 respectively and live in Sofia. The first applicant was represented by Ms D. Marcheva, a lawyer practising in Sofia. The second applicant was represented by Mr P. Borisov, a lawyer practising in Pernik. 3. The Government were represented by their Agent, Ms I. Stancheva ‑ Chinova, of the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. application no. 18592/15 5. The first applicant is a single mother who lives with and cares for her two children, born in 2003 and 2006 respectively. Administrative proceedings for the payment of a family allowance 6. On 30 September 2013 the first applicant applied, under section 7(9) of the Family Allowances for Children Act 2002 (“the FACA”), for a family allowance for families of children who had only one living parent (see paragraph 37 below). 7. The Directorate for Social Family Allowances in Krasno Selo (“the Directorate”) refused to pay the allowance to the first applicant in an order issued on 14 October 2013. The reason given was that her situation did not fulfil the legal requirements set out in section 7(9) of the FACA; in particular, she had not submitted the documents required under section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA (see paragraph 41 below). 8. The first applicant challenged the order before the higher administrative body, the Regional Agency for Social Assistance (“the Agency”), which upheld it on 4 December 2013. In particular, having established that the first applicant’s family consisted of her and her two children, the Agency found that she had not submitted any evidence to show that her children had been recognised by their father and that he had died. Likewise, she had not produced a certificate attesting that the children were their father’s statutory heirs (an “heirs certificate”) or a family-status certificate showing that she was not married. Judicial review proceedings regarding the payment of the family allowance 9. The first applicant brought judicial review proceedings. 10. She pointed out that she had submitted a certificate showing that the children’s father was unknown. As to an heirs certificate, it was objectively impossible for her to produce such a document, given that the children’s paternity had not been established. She further argued that the administration’s refusal to grant her the allowance in question was unlawful, as it was contrary to Article 6 § 2 of the Constitution, which prohibited discrimination on the basis, among other things, of origin (see paragraph 32 below). The legal definition of “children with only one living parent”, set out in paragraph 1, point 9, of the Additional Provisions of the FACA (see paragraph 40 below), could not exclude children who had not been recognised by their father. If the legislature had meant for section 7(9) of the FACA to apply only to children one of whose parents had died, they would have expressly said so by using the formulation “children with one deceased parent” instead of the current formulation “children with only one living parent”. 11. The applicant referred to Article 16 of the revised European Social Charter (see paragraph 56 below), Article 23 of the International Covenant on Civil and Political Rights (“the ICCPR” – see paragraph 61 below) and Article 9 of the International Covenant on Economic, Social and Cultural Rights (“the ICESCR” – see paragraph 62 below). First instance proceedings 12. In a judgment of 14 March 2014, the Sofia City Administrative Court set aside the Directorate’s order and remitted the case to it to decide on the merits of the first applicant’s request in line with the reasoning in the court’s judgment. 13. The City Court established that the first applicant’s family status corresponded to that of “unmarried individuals” and that she cared for her two minor children alone. The children’s birth certificates indicated their father as “unknown”. The court went on to observe that the law did not differentiate between children living in families as defined in paragraph 1 of the Additional Provisions of the FACA (see paragraph 39 below) and children in families where the parents were not married. It was unacceptable to place children whose parents were not married or did not live together, or whose fathers had not recognised them, in a less favourable position than that of children growing up in families that matched the legal definition above. Accordingly, a mother and her two children who have not been recognised by their father, the latter being unknown, represented a family within the meaning of the above-mentioned provision. Therefore, such children had only one living parent, given that the other one was unknown. 14. The City Court went on to find that the refusal by the administrative body to grant the allowance in question to the first applicant was contrary to Article 3 § 1 of the 1989 UN Convention on the Rights of the Child, in force in respect of Bulgaria since 1991 (see paragraph 60 below). The refusal was not in the best interest of the children, and that interest had to be the central consideration in the decision-making process of any institution, be it a private or a public one. Accordingly, if the legislation stated that the State provided assistance to the children of a parent whose husband or wife had died, it was reasonable to conclude that this also applied to children with only one parent, irrespective of whether the other parent had died or the children had not been recognised by their father. 15. The court further held that depriving families in which one of the parents was unknown, or had not recognised the children, of the allowance in question would result in discrimination on the basis of social status vis ‑ à ‑ vis the parent who was alive. The law had envisaged that the allowance was due to families with children who had only one living parent, irrespective of the income of the family. Consequently, the granting of that family allowance had to be extended to all children who were being raised by only one parent. As a result of the absence of their second parent by virtue of being unknown, those children were in an identical situation to children one of whose parents had died. 16. Indeed, a father was not obliged to recognise a child if he did not want to do so; a mother did not dispose of any legal mechanism to compel the father to recognise the child of his own motion, or to marry her. In both cases, children living in families with only one parent had the same needs and, in both cases, the State had a corresponding responsibility to ensure acceptable conditions for their care. The family allowance due to families under section 7(9) of the FACA (see paragraph 37 below) was determined precisely in view of the needs of children living in such families. The fact that the first applicant was a single mother could not be interpreted to the detriment of her children and be used in order to refuse to grant the family the above-mentioned allowance. Accordingly, the authorities were obliged to grant her the allowance towards providing care for her children as their only living parent. Last instance proceedings 17. Upon an appeal by the Directorate, on 22 October 2014 the Supreme Administrative Court (“the SAC”), in a final judgment, quashed the lower court’s judgment and rejected the first applicant’s challenge to the Directorate’s order of 14 October 2013 (see paragraph 7 above). 18. The SAC held that while the lower court had correctly established the facts, it had wrongly applied the law. In particular, in order to be eligible for the family allowance provided for by section 7(9) of the FACA, it was necessary to produce an heirs certificate and a family-status certificate, in accordance with the requirement under section 17(3), points 13 and 14, of the Regulations for the implementation of the FACA (see paragraph 41 below). The central consideration was, therefore, whether the case concerned a parent who had survived the death of his or her spouse and parent of his or her children. The common children of the deceased and surviving parents had to be the legal heirs of the former. That was the reason for the requirement to submit a certificate attesting to this with the request for the family allowance. Likewise, there was a requirement that the parent making the request had to be single at the time of the request. 19. Consequently, the lower court had wrongly concluded that the key element was whether the first applicant as a single mother and her children represented a family. Instead, the crux of the matter was whether there was a surviving parent who had not remarried. The outstanding question therefore was whether the legal provision at stake applied only to situations of semi-orphaned children, or also to situations of children whose fathers had not recognised them. In order to establish the meaning of that provision, namely whether children who had not been recognised have equal rights with semi-orphaned children, it was necessary to look at the intentions of the legislature. 20. In particular, paragraph 2 of the bill of 13 March 2012 for amending the FACA stated that the reason for introducing section 7(9) of the FACA was to improve the protection available to the most vulnerable group of children, namely those who were being brought up by only one living parent. The logic was that the optimal environment for every child was a family, as well as that there were more difficulties associated with caring for a child one of whose parents had died. Therefore, it could be concluded that, by making this family allowance available irrespective of the income of the family, the legislature had envisaged that it applied only in respect of families in which one of the parents had died. 21. That had also been the conclusion of the Constitutional Court (“the CC”) in its decision no. 3 of 27 June 2013 in which it had rejected the request by the Ombudsperson to declare unconstitutional section 7(9) of the FACA in so far as it used the word “living” (see paragraphs 43-43 below). Specifically, the CC had found that the loss of a parent was the single most important factor affecting any given family environment. Thus, children most acutely affected by the loss of a parent were, in the first place, those whose parents had both died and, in the second place, those one of whose parents had died. The idea behind the law was that there was a significant difference between a child who is cared for by a surviving parent and a child who is cared for by a parent who has not married. In the latter case, the child had the right to bring an action to establish paternity. As a result of such an action, the child would become part of another family, with all the personal and economic consequences that would bring. This in turn was in the best interest of the child as it was of crucial importance for the establishment of his or her legal status. 22. The CC had rightly determined that the situation of a child one of whose parents has died was not identical to that of a child who was cared for by a single parent for a different reason. The introduction of a different regime of protection in respect of these two categories was justified in order to ensure equal protection to children cared for by only one living parent. 23. This led to the conclusion that a broad interpretation of section 7(9) of the FACA was contrary to the purpose of the law. Were the provision to be interpreted broadly, this would result in a much larger group of rather dissimilar cases which would have to be treated equally, in breach of the principle of equality before the law. That in itself would be unjust. 24. The City Court had wrongly held that refusing to pay the family allowance to the first applicant was in breach of Article 3 of the Convention on the Rights of the Child (see paragraph 14 above). The provision in question provided that States were obliged to ensure that children benefited from the care and protection necessary for their well-being, taking into account the rights and obligations of their own parents or other caregivers, including by means of all necessary administrative and legal measures. It was precisely to provide for the best interests of the child that the legislature had introduced section 7(9) of the FACA, given that it provided the requisite care for children one of whose parents had died. Statistical data provided by the Government 25. According to information provided by the Bulgarian National Statistical Institute, a State agency, the number of children with unknown fathers born in the country between 2007 and 2015 was on average 12,400 per year. 26. As of February 2017, according to information provided by the State Agency for Social Assistance, the State was paying allowances under the FACA to the families of a total of 640,952 children, while the specific allowance under section 7(9) of the FACA was being paid to the families of 10,570 children with one deceased parent. application no. 43863/15 27. The second applicant is a single mother who lives with and cares for her minor son born in 2007. 28. She complained to the Commission for the Protection against Discrimination (“the Commission”) about her family being discriminated against as a result of her inability to obtain the allowance provided for by section 7(9) of the FACA because the father of her children was unknown as opposed to deceased. On 13 June 2014 the Commission found that section 7(9) of the FACA provided for less favourable treatment of families of children with only one parent in comparison with families in which one of the parents had died. That, the Commission ruled, was direct discrimination on the basis of “personal status”, “origin” and “family status”. 29. The Council of Ministers brought judicial review proceedings in respect of this decision. The second applicant participated in the proceedings as an interested party and submitted a reply to the position of the Council of Ministers. 30. In a judgment of 17 December 2014, the Sofia City Administrative Court overturned the Commission’s decision. The judgment indicated that it could be appealed against within fourteen days from the parties being notified of it (see paragraph 55 below). The second applicant was notified of it on 22 December 2014. She did not appeal against the judgment and neither did the Commission. The judgment thus became final on 20 January 2015. 31. On 21 April 2015 the second applicant enquired with the Commission about developments in the case and was told orally by a staff member that the Commission had not appealed against the judgment. On 1 July 2015 she wrote to the Commission repeating her request, but received no reply. | The first applicant, a single mother whose minor children had not been recognised by their father, was refused a monthly allowance provided to families in which children had one living parent only. She unsuccessfully brought judicial review proceedings for discrimination before the domestic courts. |
991 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | 2. The applicants ’ details and the names of their representatives are listed in the Appendix. 3. The Government were represented by their Agent, Mr Ç. Əsgərov. BaCkground information 4. The first applicant was a student at Baku State University and the second applicant was a student at Odlar Yurdu University at the time of the events in question. They were members of the civic movement NIDA, a non-governmental organisation established by a group of young people in February 2011. According to its manifesto, NIDA seeks liberty, justice, truth and change in Azerbaijan and it rejects violence and uses only non-violent methods of protest. 5. Following a number of deaths of soldiers in the Azerbaijani army in non-combat situations, from January until March 2013 a number of demonstrations were held in Baku. The demonstrations received wide media coverage and drew the public ’ s attention to the issue of deaths of soldiers serving in the army, for which the government were harshly criticised. The demonstrations were organised through social media and information about them was disseminated through social media and the press. The applicants actively participated in those demonstrations, and NIDA played a key role in their organisation and conduct. Although the demonstrations were peaceful, the police dispersed those who gathered and a number of demonstrators were arrested (see, among many other cases concerning these events, Mehtiyev and others v. Azerbaijan, nos. 20589/13 and 7 others, 6 April 2017; Bayramov v. Azerbaijan, nos. 19150/13 and 52022/13, 6 April 2017; and Hajili and others v. Azerbaijan, nos. 44699/13 and 2 others, 29 June 2017). One such demonstration had been scheduled for 10 March 2013. Institution of criminal proceedings against the applicants and their remand in custodyIn respect of the first applicant In respect of the first applicant In respect of the first applicant 6. On 7 March 2013 the first applicant was arrested by officers of the Ministry of National Security (“the MNS”) and the Prosecutor General ’ s Office. On the same day a search was carried out in the flat where he lived. The search of the flat allegedly uncovered 174.54 grams of narcotic substances and twenty-eight leaflets worded “democracy urgently needed, tel : + 994, address: Azerbaijan” ( təcili demokratiya tələb olunur, tel : + 994, ünvan : Azərbaycan ). Despite the Court ’ s explicit request to the Government to submit copies of all documents relating to the domestic proceedings, the Government failed to provide the Court with a copy of the record of that search. 7. On 9 March 2013 the first applicant was charged with a criminal offence under Article 234.1 (illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell) of the Criminal Code. 8. On the same day the Nasimi District Court ordered that the first applicant be detained for a period of two months. The court justified the first applicant ’ s detention pending trial by citing the gravity of the charges against him and the likelihood that if released he would abscond and obstruct the investigation. 9. The first applicant did not appeal against the Nasimi District Court ’ s decision of 9 March 2013. In respect of the second applicant 10. On 7 March 2013 the second applicant, who was a minor at that time, was arrested and taken to the premises of the MNS. On the same day a search was carried out in the second applicant ’ s flat, where 252.27 grams of narcotic substances and three Molotov cocktails were allegedly found. Despite the Court ’ s explicit request to the Government to submit copies of all the documents relating to the domestic proceedings, the Government failed to provide the Court with a copy of the record of that search. 11. On 9 March 2013 the second applicant was charged with criminal offences under Article 228.3 (illegal possession of weapons, committed by an organised group) and Article 234.1 (illegal possession of a quantity of narcotic substances exceeding that necessary for personal use without intent to sell) of the Criminal Code. The acts attributed specifically to him were that he had illegally obtained narcotic substances and that, by creating an organised criminal group with another member of NIDA (B.G.), he had illegally obtained three Molotov cocktails and then kept them at his place of residence. 12. On the same day the Nasimi District Court ordered the second applicant ’ s pre-trial detention for a period of three months. The court justified the second applicant ’ s detention pending trial by citing the gravity of the charges and the likelihood that if released he would abscond and obstruct the investigation. 13. The second applicant did not appeal against the Nasimi District Court ’ s decision of 9 March 2013. Joint public statement of the law-enforcement authorities and further developments 14. On 8 March 2013 the Prosecutor General ’ s Office and the MNS issued a joint public statement to the press, stating that “illegal attempts to undermine the social-political stability established in the country have recently been made by some radical destructive forces” ( son dövrlər radikal yönümlü bəzi destruktiv qüvvələr tərəfindən ölkədə bərqərar olmuş ictimai ‑ siyasi sabitliyin pozulmasına yönəlmiş qanunazidd cəhdlər göstərilir ). The statement also confirmed that the applicants and B.G. had been arrested for planning to incite violence and civil unrest during the unlawful demonstration scheduled for 10 March 2013. It also said that criminal proceedings had been instituted against the applicants and B.G., as narcotic substances had been found in their flats, that nineteen Molotov cocktails had been found in B.G. ’ s flat and three in the second applicant ’ s flat, and that twenty-eight leaflets worded “democracy urgently needed, tel : + 994, address: Azerbaijan” ( təcili demokratiya tələb olunur, tel : + 994, ünvan : Azərbaycan ) had been found in the first applicant ’ s flat. The statement further read as follows: “it was established during the preliminary investigation that since mid-2012 all three individuals, being addicted to narcotic substances and having become members of NIDA through the Internet, had actively participated in a number of the organisation ’ s illegal activities and had prepared [bottles containing] flammable liquid known as ‘ Molotov cocktails ’, [which were] found in their flats” ( İlkin istintaqla müəyyən edilmişdir ki, hər üç şəxs 2012-ci ilin ortalarından etibarən internet vasitəsilə “Nida” vətəndaş hərəkatının üzvləri və narkotika aludəçisi olmaqla, təşkilatın bir sıra qanunsuz tədbirlərində fəal iştirak etmiş və yaşadıqları mənzillərdən aşkar edilmiş “Molotov kokteyli ” adlanan tez alışan maye onlar tərəfindən hazırlanmışdır ). 15. On the same day NIDA issued a public statement, saying that the arrest of the applicants and B.G. had been politically motivated and had been aimed at silencing the protesters by creating a feeling of fear among them before the demonstration planned for 10 March 2013. 16. Following the applicants ’ arrest, on various dates in March and April 2013, four of seven board members of NIDA were also arrested within the framework of the same criminal proceedings. The domestic proceedings concerning the arrest and pre-trial detention of the board members of NIDA have already been the subject of the Court ’ s judgment in the case of Rashad Hasanov and Others v. Azerbaijan ( nos. 48653/13 and 3 others, 7 June 2018). Extension of the applicants ’ pre-trial detentionIn respect of the first applicant In respect of the first applicant In respect of the first applicant 17. On 15 March 2013 the first applicant lodged a request with the Nasimi District Court to be put under house arrest rather than in pre-trial detention. He asserted, in particular, that there was no risk of his absconding or obstructing the investigation and that the courts had failed to take into consideration his personal situation in that he had a permanent place of residence and was a student. 18. On 18 March 2013 the Nasimi District Court dismissed that request, finding that there was no need to use a preventive measure alternative to remand in custody. 19. On 27 March 2013 the Baku Court of Appeal upheld the first ‑ instance court ’ s decision. 20. Following a request by the prosecutor, on 2 May 2013 the Nasimi District Court extended the first applicant ’ s detention pending trial by two months, until 7 July 2013. The court cited the complexity of the case, the possibility of the first applicant ’ s absconding, the necessity of additional time to carry out further investigative actions, his way of life ( həyat tərzi ) and his links with foreign States. By the same decision the court also rejected a request made by the first applicant to be put under house arrest rather than in pre-trial detention. 21. On 4 May 2013 the first applicant appealed against that decision. He specifically argued that the Nasimi District Court had failed to justify the extension of his pre-trial detention. 22. On 13 May 2013 the Baku Court of Appeal dismissed the appeal, holding that the first-instance court ’ s decision had been justified. 23. On 2 July and 29 August 2013 the Nasimi District Court again extended the first applicant ’ s detention pending trial for periods of two and three months, respectively. The court relied on the same grounds, namely, the gravity of the charges, the complexity of the case, the existence of a risk of absconding and the need for additional time to carry out further investigative actions. 24. The Nasimi District Court ’ s extension decisions were upheld on appeal by the Baku Court of Appeal on 10 July and 6 September 2013, respectively. 25. No further extension decisions were included in the case file. In respect of the second applicant 26. Following a request by the prosecutor, on 30 May 2013 the Nasimi District Court extended the second applicant ’ s detention pending trial by three months, until 7 September 2013. The court cited the gravity of the charges, the complexity of the case, the possibility of his absconding and the need for additional time to carry out further investigative actions. 27. On 3 June 2013 the second applicant appealed against that decision, arguing that the first-instance court had failed to justify his continued detention. He asserted that there was no risk of absconding or obstructing the investigation and that the first-instance court had failed to take into consideration his personal situation. In that connection, he noted that the lower court had ignored the fact that he was a minor, that he had no criminal record and that he had a permanent place of residence. 28. On 6 June 2013 the Baku Court of Appeal dismissed the appeal, finding that the extension of the second applicant ’ s detention pending trial had been justified. The appellate court did not address any of the second applicant ’ s specific arguments. 29. On 3 July 2013 the second applicant lodged a request with the court asking to be put under house arrest rather than in pre-trial detention, reiterating his arguments. 30. On 4 July 2013 the Nasimi District Court dismissed the request, finding that there was no need to use a preventive measure alternative to remand in custody. It did not examine the second applicant ’ s specific complaints. 31. On 8 July 2013 the second applicant appealed against that decision, reiterating his previous arguments. 32. On 11 July 2013 the Baku Court of Appeal dismissed that appeal, finding that the first-instance court ’ s decision had been justified. 33. On 29 August 2013 the Nasimi District Court again extended the second applicant ’ s detention pending trial for a period of three months. The court relied on the same grounds, namely, the gravity of the charges, the complexity of the case, and the necessity of additional time to carry out further investigative actions. 34. On 2 September 2013 the second applicant appealed against that decision, reiterating his previous complaints. 35. On 5 September 2013 the Baku Court of Appeal upheld the Nasimi District Court ’ s decision of 29 August 2013, finding it justified. The second applicant was still a minor at that time. 36. No further extension decisions were included in the case file. Further developments 37. In September 2013 the first applicant was additionally charged with new criminal offences under Article 28 (preparation of a crime), Article 220.1 (mass disorder) and Article 228.3 ( illegal possession of weapons, committed by an organised group) of the Criminal Code. 38. It furthermore appears that in September 2013 the second applicant was additionally charged with new criminal offences under Article 28 (preparation of a crime) and Article 220.1 (mass disorder) of the Criminal Code. 39. On 6 May 2014 the Baku Court of Serious Crimes found the applicants guilty on all counts and sentenced the first applicant to seven and a half years ’ imprisonment and the second applicant to six years ’ imprisonment. 40. On 16 December 2014 the Baku Court of Appeal upheld that judgment. 41. On 2 June and 15 October 2015 the Supreme Court upheld the appellate court ’ s judgment in respect of the second and first applicants, respectively. 42. On 17 October 2014 the second applicant and on 17 March 2016 the first applicant were released from serving the remainder of their sentence after being pardoned by presidential decrees. 43. Two separate applications (see applications nos. 57334/15 and 22334/16) concerning the fairness of the criminal proceedings against the applicants, in which various complaints under Articles 6, 10, 11 and 18 of the Convention were raised, are pending before the Court. | This case concerned the pre-trial detention of opposition activists. Both applicants had participated in peaceful anti-government demonstrations concerning the deaths of soldiers in non-combat situations. They had been arrested and remanded in custody on charges of, inter alia, illegal possession of narcotic substances, following searches of their flats and a day before another demonstration was planned. They complained that the courts had failed to justify their pre-trial detention or provide reasons for ordering its extension, and that their rights had been restricted for reasons other than those set out in the Convention. |
821 | Right to education (Article 2 of Protocol No. 1) | I. THE CIRCUMSTANCES OF THE CASE 8. The applicants were born in 2001 and 1967 respectively and live in Bucharest. A. The applicants ’ background 9. The first applicant is the second applicant ’ s son. 10. The first applicant has spastic quadriplegia, a medical condition characterised by impaired function in the limbs but which does not affect his mental capacities. From the age of one, he was registered as having a severe disability ( grad de handicap sever ) requiring a personal assistant. 11. Owing to his disability, the first applicant has undergone complex and ongoing medical treatment aimed at maintaining the mobility of his limbs and compensating for abnormalities in muscle tone. He has undergone regular surgery, has been admitted on several occasions to rehabilitation clinics in Romania and Ukraine, has undergone neurological and orthopaedic tests in Israel and is under constant physiotherapy. He relies on assistive devices to walk, including electric wheelchairs, mopeds and tricycles. His health is monitored at M.C. Children ’ s Hospital in Bucharest. In January 2011 the first applicant underwent significant surgical interventions which left him wheelchair-bound. 12. The second applicant is a single parent and sole breadwinner. 13. When the first applicant reached school age, the authorities assessed his situation and recommended that he attend a mainstream school (report of 25 October 2007, see paragraph 35 below). The recommendation was maintained in all subsequent assessments. 14. On 8 February 2013 the Bucharest Directorate General for Social Welfare and Child Protection ( Direcţia Generală de Asistenţă Socială şi Protecţia Copilului, “the child protection authority”) drafted a plan for the first applicant ’ s physical rehabilitation. It listed the rights provided for by law, such as the right to special allowances, free public transport, parking in spaces reserved for people with disabilities, physiotherapy, and special arrangements at school such as a specially adapted curriculum and methods of testing, appropriate physical education, appropriate facilities in the school building to ensure accessibility, and assistance from a school nurse. It recommended that a personal assistant be hired by its Human Resources Department and that the accessibility of public infrastructure be improved (accessibility of kerbs, pedestrian crossings and pathways, public transport stations and parks). 15. The first applicant attended several schools: (a) In 2004 the first applicant was enrolled in nursery school but, according to the second applicant, he was forced to leave after only three days, when the school manager informed the mother that her institution “[did] not do handicap”. (b) From 2007 to April 2013 the first applicant attended classes at school no. 131, a mainstream educational facility for primary and secondary education (children aged six to fourteen). The school building was located sixty metres from the applicants ’ home. The applicants argued that the school did not offer adequate conditions despite the authorities ’ reassurance and the applicants ’ continuous efforts. (c) In the academic year 2013/14 the first applicant attended school no. 148 where, according to the applicants ’ submissions, the conditions and the support were acceptable. (d) In October 2015 he started classes in “Mihai Eminescu ” High School (“M.E. School”) where he remained until 2017. The applicants complained about the conditions in this school. (e) On 30 August 2017 the first applicant moved to a private school for the second-last year of high school. In April 2018, the date of the latest communication to the Court from the applicants, he was still attending this school. B. Accessibility of school premises 1. The applicants ’ version (a) School no. 131 16. The applicants ’ description of the situation concerns the academic years 2011/12 and 2012/13. When the first applicant started school, the school building had no facilities for disabled students. A new gate had to be pierced in the fence facing the street where the applicants lived and a concrete strip was laid leading to the students ’ entrance in the main building. The toilets were not equipped for disabled children and a cubicle was improvised in the girls ’ toilet on the first floor. Later, in 2013, a special toilet on the ground floor was equipped for the needs of children with disabilities, but the first applicant still required support when using it. The sports facilities were not adapted for the use of disabled children and the first applicant could neither take part in class sports activities nor do the exercises recommended by his physicians in order to help with his muscle tone. 17. The second applicant alleged that, at her own expense, she had arranged for small adjustments to be made to the classroom and toilet, such as rails on the walls, to facilitate her son ’ s movements. 18. Because there were no access ramps in the school, the first applicant could not on his own reach the upper floors of the building, where some important facilities were located such as the doctor ’ s office, the psychologist ’ s office, the laboratories and the after-school care facilities. The second applicant had to spend significant amounts of time at the school carrying him and the walking devices to the upper floors, and helping him go to the toilet, do the mandatory physical exercise recommended by his physicians and carry his school books, lunchbox and other items. In the first applicant ’ s first four years at school, in addition to his mother ’ s support, his classmates or the school staff also helped him with some of these tasks. 19. The absence of adequate medical personnel at the school and the lack of access to medical facilities during school hours contributed to the worsening of the first applicant ’ s physical condition. The benefits he gained from surgery were lost and he became less autonomous and more reliant on support from others. 20. Because of the lack of accessibility of public buildings, the first applicant could not be included in some of the school activities, such as outings. No alternative activities were provided for him. The second applicant ’ s attempts to have extracurricular activities arranged for her son remained futile; for example, although the child was admitted to piano lessons, the building housing the piano club was inaccessible to wheelchairs. 21. In time the situation generated tensions between, on the one hand, the applicants and, on the other hand, the school staff, the other children and their parents. (b) M.E. School 22. According to the applicants, the school building was not adapted for the needs of children with disabilities and its premises remained mostly inaccessible. In the absence of any support in school, the second applicant had to physically carry her son on a daily basis around the school building and to the upper floors where the science laboratory and the gym were situated. The school also failed to provide for his basic needs such as personal and intimate care, feeding and moving around. He was often abandoned unassisted in the school corridors. 23. The applicants submitted that during the first applicant ’ s stay in M.E. School, the authorities had failed to devise and implement an individualised educational plan. The teaching, testing and curriculum had not been adapted to his situation and some of the school teachers had openly refused to adapt their routine to his needs or had asked that he be sent to a special school, an attitude which had been tolerated by the school administration. 2. The Government ’ s version (a) School no. 131 24. Based on the information provided by the management of school no. 131 and the local administration, the Government gave a different account of the situation. They explained that from the time of his enrolment in the school, the needs of the first applicant had always been taken into account. 25. In September 2008 the school administration contacted the Bucharest Schools Inspectorate ( Inspectoratul Şcolar al Municipiului Bucureşti, “the ISMB”), in order to seek financial help to adapt the school premises to the first applicant ’ s needs. 26. During 2012 and 2013 the school buildings were rendered more accessible to wheelchairs. In particular, an access ramp was installed; one toilet cubicle was equipped with an alarm bell linked directly to the school secretariat; the yard was asphalted; the nurse ’ s office was moved to the ground floor, next to the first applicant ’ s classroom; the first applicant was provided with specially adapted desks in the classroom; and an air- conditioning unit was placed in the classroom. 27. On 7 April 2014 an ISMB internal audit concluded, after verifying the school documents, that the entire cost of the work had been met from the school ’ s budget. 28. The first applicant was able to use the toilet facilities but because of the deterioration of his general health he was sometimes unable to reach the toilets on time. The school personnel helped with all aspects of his personal and intimate care and offered fresh clothes when his mother did not want to provide clean changes. 29. The child did not return to school after 3 April 2013 (see paragraph 69 below). From the official documents it appears that from 7 to 24 May 2013 the first applicant received medical treatment in Băile Felix Hospital and attended classes in the nearby Oradea School Centre for Inclusive Education. According to the Government, the second applicant did not inform the administration of school no. 131 about this situation and continued to complain that she and her son were being denied access to the school premises. (b) M.E. School 30. Starting with the 2015/16 school year the first applicant attended classes in M.E. School. At that time, the building was partially accessible: it was equipped with an access ramp, had classrooms on the ground floor, and had access in the yard for a specially adapted car. 31. On 9 September 2015, as soon as it was informed of the first applicant ’ s transfer, the M.E. School administration asked the local authorities for help in installing an accessible toilet and a lift, acquiring a computer with specially adapted software, and creating a medical office and a library on the ground floor. 32. According to the information provided by the authorities, in March 2016 the school building had two access ramps, two reserved parking places for people with disabilities, a classroom on the ground floor, and a specially adapted desk in the first applicant ’ s classroom. 33. The school was unable to negotiate the acquisition of a lift during the 2015/16 school year. According to the information presented by the local authorities, the second applicant refused several options proposed to her. Eventually, the school administration managed to purchase a stairlift which was installed on 21 November 2016. On the same day the school personnel were trained in how to operate it. 34. On several occasions the second applicant brought her son into school without a wheelchair by carrying him on her back (on 3-5 February and on 3 and 18 March 2016) and left him without any means of moving around the school premises. According to the Government, at that time the school was accessible with a wheelchair, the first applicant had a specially adapted desk in his classroom and his transport to and from school was taken care of by the foundation “Motivation”. On other occasions the second applicant refused to let the child stay in school as he did not have a personal assistant. C. Educational support in school 1. School no. 131 35. On 25 October 2007 the child protection authority recommended that the first applicant attend classes in school no. 131 and be given the assistance of a support teacher ( professor de sprijin ). The recommendation was reiterated on 25 August 2011 in relation to secondary education. 36. The school adapted the timetable and testing methods to the first applicant ’ s needs. The child was entitled to a 50% increase in the time allotted for written exams and was partly exempted from attending school. In addition, the school offered the first applicant the possibility to attend classes via Skype during periods when he needed to be away from school for medical reasons. 2. M.E. School 37. From 22 September 2015 M.A. was assigned as a support teacher for the first applicant. On 7 December 2015 M.A. drafted a personal intervention plan detailing the subjects that the first applicant would take in school and the specially adapted teaching methods. On the same day M.A. informed her superiors of the difficulties she had with the second applicant, who had asked her not to work with her son and had tried to dictate to her which subjects to exclude from her son ’ s curriculum. 38. On 11 December 2015 M.A. was replaced by D.C., who on 4 March 2016 presented a new intervention plan which was accepted by the majority of the first applicant ’ s teachers. D.C. continued to assist the first applicant in the school year 2016/17, and on 15 September 2016 drafted a new intervention plan which was accepted by most of the teachers. According to the documents in the file, the second applicant refused any communication with D.C. and did not participate in any of the meetings organised by D.C. with the school staff in order to discuss the first applicant ’ s development and needs. 39. After the adoption of decision no. 913 of 25 July 2016 (see paragraph 63 below), the authorities put in place a system for providing the first applicant with support and assistance in school. Specifically, in September 2016 the child protection authority designated for this task several professionals working in a centre for abused children who had experience in working with children. According to the Government, they encountered difficulties with the second applicant, who on occasions refused to leave the child at school, refused to explain the reason for his absence or verbally abused the representatives of the child protection authority. 40. The first applicant did not attend school daily and was absent on several occasions, sometimes for long periods of time. He also attended other schools in the towns where he was hospitalised for treatment or rehabilitation. According to the report drafted by the support teacher, the first applicant ’ s long absences from school, as well as the second applicant ’ s attitude, had a negative impact on the first applicant ’ s education. D. Therapy in school 1. School no. 131 41. The first applicant ’ s physicians set out recommendations for the school and other authorities regarding the child ’ s medical needs, emphasising the importance of regular physiotherapy and occupational therapy, including during school hours. They advised against keeping the patient in the same position for long periods of time, as that could cause muscle rigidity and discomfort, thus compromising his rehabilitation and, in time, leading to deformities. They recommended that the child alternate periodically between sitting and standing up. 42. In November 2012 a physiotherapist was assigned to come to the school to work with the first applicant, and the school reserved a space in the gym room for the physiotherapy sessions. During the second term of the 2012/13 school year, the physiotherapist and the first applicant met for three sessions of one hour each. 43. At the beginning of the 2011/12 school year the school requested that it be provided with a physiotherapist, a nurse and a medical assistant. 44. It appears from the information provided by the Government that the second applicant failed to provide the school with the medical information concerning the first applicant ’ s needs in terms of physical recuperation. The physical education teacher created a special programme for the child despite not being acquainted with the precise medical recommendations. The second applicant refused to bring the child to his sessions. 45. The school also arranged psychological counselling for the applicants, which was not pursued as the second applicant stopped bringing the child to the meetings. 2. M.E. School 46. During the 2015/16 school year the first applicant received weekly sessions of speech therapy and educational therapy during the periods when he attended school. In the next school year the sessions were discontinued because the second applicant refused to give her assent. 47. The first applicant could not receive physiotherapy in school as his mother refused to allow him to participate in any session which did not take place in the school gymnasium. She also omitted to present the medical certificates that were required in order for the therapist to adapt the sessions to the first applicant ’ s needs. E. Personal assistant 48. In 2011 the second applicant asked the authorities to appoint a personal assistant for her son to provide him with support, in particular during school hours. She explained that she could not act as his personal assistant as she had to work for a living. On 15 September 2011 the school administration also informed the child protection authority that in the absence of a personal assistant the first applicant could not safely continue his studies in a mainstream school. 49. According to the applicants, the child protection authority initially denied that the first applicant had the right to a personal assistant, then considered the second applicant to be the child ’ s personal assistant. 50. In a judgment of 19 July 2011 (case no. 8249/3/2011), the Bucharest County Court (hereinafter “the County Court”) partly allowed an action brought by the second applicant against various authorities concerning the manner in which they had dealt with her son ’ s situation. The court observed that the rehabilitation plan had not been drawn up in accordance with the legal requirements, in particular because the second applicant had not been involved in the process and the plan had not included all the services required by the child and had not taken into account his particular needs. It therefore ordered the child protection authority to supplement the plan according to the court ’ s instructions. Furthermore, the court noted that it was not objectively impossible for the authorities to hire a personal assistant for the first applicant. It therefore ordered the child protection authority to identify a suitable person and to make a proposal to the city council, which in turn was ordered to provide the necessary funds from its budget to cover the salary of the personal assistant. The decision was upheld by the Bucharest Court of Appeal in a final decision of 9 April 2012. 51. On 19 October 2011 the second applicant asked school no. 131 to hire a nurse who could assist her son with his needs, as an alternative to the appointment of a personal assistant, but no such appointment was made during the first applicant ’ s stay in this school (see paragraph 15 above). 52. According to the information transmitted by the Government, between 2011 and 2014 the child protection authorities organised several interviews in order to find a suitable personal assistant for the first applicant. Eventually, on 23 May 2014 the child protection authority hired a personal assistant. On 17 September 2014 that person resigned, on the ground that the second applicant had asked her to perform tasks which were not consistent with her job description. 53. On 29 January 2015 the second applicant informed the authorities that she insisted that a personal assistant be hired. Three individuals expressed an interest in the position and were approved by the second applicant. However, one refused to sign the contract as he considered the second applicant ’ s attitude towards him to be abusive and offensive; he explained that the second applicant had asked him to wash dishes and clean the house, tasks which had not been in his job description, and had then accused him of wanting to harm her son. The other candidates took the job on a part-time basis starting on 1 September 2015. One had to leave on 16 December 2015 as his visa was not extended, and the other resigned for health reasons on 27 January 2016. 54. In January 2016 the authorities started the process of finding a new personal assistant, working in close contact with various non-governmental organisations involved in the protection of disabled persons. F. Complaints and litigation 55. The second applicant lodged several complaints with the administrative authorities, with the National Council against Discrimination ( Consiliul Naţional pentru Combaterea Discriminării, “the NCAD”) (at least six cases lodged directly with this authority and continued before the courts), with the courts (at least five applications lodged directly with the courts) and with the prosecutor ’ s office (at least sixteen complaints have been investigated so far by the prosecutor ’ s office). These complaints mainly concerned the alleged lack of services for her son, both in school and outside school, and the manner in which the competent authorities handling his case had discharged their obligation to support the first applicant and to adapt the infrastructure to the needs of people with disabilities, and in particular to the first applicant ’ s needs. 1. Request for a performance order (court case no. 14001/3/2014) 56. The case concerned an application lodged by the applicants on 24 April 2014 against the authorities with responsibility for assisting the applicants with matters concerning disability and education, namely the Bucharest Centre for Resources and Educational Assistance ( Centrul Municipiului Bucureşti de Resurse şi Asistenţă Educaţională, “the CMBRAE”), the Bucharest local council of the fourth precinct, which was responsible for M.E. School (“the Bucharest IV local council”), the Bucharest local council of the fifth precinct, which was responsible for school no. 131 (“the Bucharest V local council”), the child protection authority, the Commission for Child Protection (an authority created at local level under Law no. 272/2004 on the protection and promotion of children ’ s rights), the ISMB, and the NCAD. The applicants sought to compel these authorities to re-evaluate the first applicant ’ s educational placement, to provide support in school, to adapt the school premises to the first applicant ’ s needs, and to grant compensation for the harm suffered by the child in school. 57. On 30 June 2014 and 13 and 20 August 2015 the applicants extended their action and on the last-mentioned date asked the court to ensure that the same hardship would not continue also in M.E. School. On 25 November 2014 the Administrative Disputes Division of the County Court sent the case to the Civil Division of the same court and on 23 June 2015 the case was sent to a bench of the Civil Division specialising in children ’ s rights. 58. In a decision of 10 June 2016 the County Court found partly in favour of the applicants and ordered the local authorities to take several actions, in accordance with their remit: (a) It ordered the CMBRAE to issue a new personalised intervention plan ( plan de intervenţie personalizat ); it also noted that the first applicant was already allowed extended work time during tests in class and had a specially adapted desk, but considered that those measures, while being necessary, were not sufficient. (b) The court ordered the CMBRAE and the ISMB to adapt the school curriculum and the educational plans to the first applicant ’ s needs, finding as follows: “While in the special education [curriculum] the educational plans and school curriculum are tailored to the type and degree of disability, thus allowing time for therapy ..., in mainstream schools this kind of adaptation does not exist. However, in the present case the child, who was placed in a mainstream school, has a normally developed intellect but has a neuromotor disability which drastically limits his movement ... A daily school programme of 6-7 hours goes against the medical recommendations ... and limits his opportunities to undergo therapy.” (c) It ordered the ISMB and the child protection authority to continue to provide the first applicant with psycho-educational assistance and a safe environment in school, in terms of the physical surroundings and specialist personnel. The court found as follows: “The current legislation provides for measures capable of ensuring the integration of children with disabilities in school and in society, notably special educational services via the support teacher, speech therapy and psycho-educational counselling. ... The personal rehabilitation plan drafted by the child protection authority [for the first applicant] provided for such services: physiotherapy, speech therapy and psychological counselling. .... Based on the parties ’ statements, the court finds that the authorities involved did not refuse to provide the child with the services that he was entitled to under the law and which were included in his personal rehabilitation plan; [what they refused were] merely the conditions imposed by the mother that [the services] should be provided on the school premises ... However, in order to meet the child ’ s complex needs and ensure that he had access to all services, the authorities, in addition to the psycho-educational counselling offered by the school psychologist, organised speech therapy and physiotherapy in his school. For these reasons, the [applicants ’ ] action is allowed and the institutions involved are ordered to take measures to ensure the continuity of services in terms of personnel, but also in terms of the physical environment and the necessary equipment.” (d) The court ordered the ISMB, the child protection authority, the Bucharest V local council and the Bucharest IV local council to take measures to ensure the child ’ s assistance and safety in school, via teachers, school auxiliary staff, a personal assistant or a qualified caregiver. The court found as follows: “The services provided in school to assist [the first applicant], provided by psychologists, speech therapists, school counsellors, support teachers, physiotherapists, etc., are necessary in order to ensure the effectiveness of the child ’ s recuperation and therapy, but do not fully meet the child ’ s complex needs during school time. ... the child has severe neuromotor disabilities which make it impossible for him to move, to walk, to help himself, to take notes in class, etc., and which consequently make it necessary for him to be assisted by another person who can move him, as needed, from the wheelchair or assistive devices to his desk and back; help him move around the school (take charge of him at the school door, accompany him back to the door at the end of the school day, and take him to the toilet, the sports room, and the laboratories which are on the upper floor); help him with taking notes during lessons and writing down the homework; assist him with physical exercises; assist him in the event of an emergency evacuation, etc. ... Concerning the presence of a nurse [ infirmier ] the court notes that, although the law requires that children with disabilities be integrated in mainstream schools, the schools ’ structure does not include qualified staff who can meet the complex needs of a child with severe neuromotor disabilities that limit or exclude the child ’ s capacity to move or to help himself. The absence of assistance ... makes it impossible for the child to attend school and affects ... his right to education ... The personal assistant not only acts as an accompanying adult for a child with severe disabilities but must also provide basic care (personal hygiene, dressing and undressing, personal and intimate care, feeding, hydration, transport, mobility and movement, etc.), assist in the child ’ s family, community, and school activities, and assist in the child ’ s school and with his or her educational integration. There is nothing to prevent the [child protection authority] and the Bucharest V local council from including these activities in the personal assistant ’ s contract ... Therefore the court considers that, in principle, the assistance, supervision and safety of the child during school hours must be ensured by his personal assistant or in the latter ’ s absence ... by a person approved and nominated for the purpose by the parent ... For the same reason, the ISMB and the Bucharest IV local council ... must take measures in order to ensure the child ’ s effective access to education and his supervision and safety. ... As the court thus considers that the child ’ s action is well-founded on this count, it orders the ISMB, the child protection authority and the Bucharest IV and V local councils to take measures in order to ensure the child ’ s supervision and safety in school, via the teachers or auxiliary staff, his personal assistant or a qualified caregiver.” (e) The court ordered the ISMB and the Bucharest IV local council to ensure the first applicant ’ s access to education by rendering the school building accessible by wheelchair, in particular by: providing specially adapted desks in the classroom and laboratories; ensuring access to the upper floors of the school building; removing the obstacles preventing the first applicant from moving around the school, such as thresholds and narrow doors; adapting the sports room to the child ’ s needs; and providing him with a computer and software adapted to his educational needs. The court noted that on 28 October 2015, at its request, the authorities had met with the applicants in order to listen to their demands and agree on solutions. It took note of the fact that at the date of the meeting, in M.E. School, there had been two reserved parking places and a toilet adapted to the first applicant ’ s needs. 59. At the same time, the District Court dismissed the applicants ’ request for reimbursement of the costs incurred in respect of transport to and from school with their own vehicles, on the grounds that they received financial assistance from the State in the form of free public transport and an annual lump sum for costs, which was meant to cover transport as well. 60. Lastly, with regard to the request for non-pecuniary damage on account of the discrimination suffered by the applicants because of the authorities ’ attitude towards them, the District Court separated the issue from the main proceedings and created case no. 22624/3/ 2016. In a final decision of 31 May 2018 in that case, the Bucharest Court of Appeal ordered the ISMB, the CMBRAE and the Bucharest V local council to pay the applicants 7,500 Romanian lei (RON) [1] in respect of non-pecuniary damage. 61. In a final decision of 7 February 2018 the Bucharest Court of Appeal examined the appeals lodged by the parties against the decision of 10 June 2016. It amended the County Court ’ s decision so that the authorities ’ obligations applied only for as long as the first applicant attended classes in a mainstream school, but dismissed the remaining appeals. 62. On 5 April 2018 the applicants started enforcement proceedings through the offices of a bailiff. 2. Interim injunction ( ordonanţă preşedenţială ) – case no. 16673/3/2016 63. In decision no. 913 of 25 July 2016 the County Court ordered the authorities to appoint a person to assist the first applicant in school until the decision of 10 June 2016 became final (see paragraph 58 above). 64. On 28 November 2016 the bailiff ordered the authorities to comply with the court order and to pay the applicants the costs of the enforcement proceedings. 65. The Bucharest IV local council contested the enforcement proceedings, arguing that the council had already complied with the court order in so far as, when the school year had started on 12 September 2016, a person had been appointed to assist the first applicant in school. The council explained that the person appointed to assist the first applicant had been replaced on several occasions because of disagreements with the second applicant, but argued that the mere fact that the second applicant was dissatisfied with these persons could not be regarded as a failure on the part of the authorities to comply with the court order. 66. In a judgment of 2 March 2017 the Bucharest District Court dismissed the objection and found as follows: “It appears that the minor, Stoian Ştefan Moshe, was unable to benefit from the measures ordered by the court not only because of the poor cooperation between his legal representative and the ... authorities, but also because of the bureaucratic mechanism for implementing the measures and the manner in which responsibilities in this sphere are shared between the authorities concerned. The court considers that there is no evidence that the minor ’ s legal representative refused enforcement of the obligations laid down in the court order.” 67. On 25 April 2017 the District Court dismissed an objection to enforcement in which the ISMB and the CMBRAE also claimed that they had already complied with the court order. The court found as follows: “The assertions made by the objecting parties – that at the date on which the enforcement request was lodged they had already complied with the obligations laid down in the court decision – is contradicted by the facts, as the child ’ s school situation is still uncertain in so far as he still does not benefit in school from the conditions set by that court decision.” 68. On 23 January 2018 the District Court noted that the authorities had not fully complied with their obligation under the interim injunction of 25 July 2016 and that all the objections to enforcement had been dismissed. Consequently, it ordered each of those authorities to pay RON 200 for each day of delay in enforcement. G. Incident of 3 April 2013 69. On 3 April 2013 the second applicant had a dispute in school with her son ’ s teacher, during the lesson. The class teacher asked her to leave the classroom, warning her that her presence was no longer tolerated and that the authorities had been alerted. The second applicant refused to leave and was eventually removed by force by two police officers and taken to the police station. She was given a formal warning for refusing to leave the school premises. She left the police station three hours later and went back to the school to collect her son. According to the Government, during the second applicant ’ s stay in the police station, the first applicant remained in school, in the presence of the school nurse and a teacher on duty. 70. On 31 May 2013 the applicants filed a criminal complaint about the incidents. The school headmaster, supported by parents ’ statements, also lodged a complaint against the second applicant, alleging that she had repeatedly disturbed the learning process. The second applicant and the school headmaster gave statements to the police. On 4 April 2017 the prosecutor ’ s office attached to the Bucharest District Court closed the investigation. It found, based on the evidence in the file, that the force used by the police officers had been necessary in order to put an end to the second applicant ’ s disruptive behaviour and had been proportionate to her reactions. It observed that the second applicant had disturbed lessons and had refused to leave the classroom, to show her identity papers to the police and to accompany the police officers to the police station. The prosecutor concluded that the injuries suffered by the second applicant had been the result of the use of force and of her own opposition to the police officers ’ actions. On 18 October 2017 the objection lodged by the applicants against the prosecutor ’ s decision was dismissed as out of time by the chief prosecutor from the same prosecutor ’ s office. The applicants ’ appeal was subsequently dismissed by the Bucharest District Court (final decision of 11 December 2017). | This case concerned complaints by the applicants, a disabled son and his mother, that the Romanian authorities had failed to provided suitable access to education for him. |
411 | Deprivation of liberty / Restriction on the freedom of movement | The background to the applicants’ respective cases and arrival at Sheremetyevo Airport 10. The applicants found themselves staying in the transit zone of Sheremetyevo Airport in Moscow. Certain details of the factual circumstances of the case are in dispute between the parties, as indicated below. Mr Z.A. 11. Mr Z.A. is an Iraqi national who was born in 1987. 12. Following threats from an Islamic State militant group, the applicant left Iraq for Turkey on a single-entry transit tourist visa received in Mosul on 11 May 2014. According to the applicant, he fled Iraq on 12 June 2014; according to the Government, he moved to Turkey by car on 27 June 2014. 13. According to the Government, Mr Z.A. spent a year in Turkey seeking employment, but did not apply for refugee status there. According to the applicant, he unsuccessfully applied for asylum in Turkey in June 2014 and moved to China in June 2015, where he had no opportunity to seek asylum. 14. On 24 July 2015 Mr Z.A. travelled by air from Shanghai to Ankara via Moscow. The Turkish authorities denied him entry because he had no visa. The applicant was sent to Moscow on 27 July 2015. On arrival at Sheremetyevo Airport on the same day, he was not allowed to pass through passport control. The Russian Border Guard Service of the Federal Security Service (“the BGS”) seized his passport. Mr M.B. 15. Mr M.B., who was born in 1988, holds a passport issued by the Palestinian Authority. 16. On 19 April 2013 the applicant left Gaza by car and arrived in Cairo, Egypt, on 20 April 2013. According to the Government, he did not apply for refugee status in Egypt. 17. On 22 April 2013 Mr M.B. left Egypt and arrived in Moscow holding a business visa valid from 16 April 2013 to 25 February 2014. On 23 April 2013 he arrived in Irkutsk where he resided with his uncle and found casual jobs. After his visa expired, Mr M.B. stayed in Irkutsk. 18. On 18 August 2015 a Russian court found Mr M.B. guilty of a breach of the migration rules and ordered his expulsion. The parties have not submitted a copy of the judgment of 18 August 2015, nor have they specified the name of the court that delivered it. 19. On 21 August 2015 the applicant took a flight from Russia to the Gaza Strip via Cairo. However, given that the crossing point in Rafah was closed, he was held for two days in the transit zone of Cairo Airport and then sent back to Moscow. 20. Mr M.B. arrived at Sheremetyevo Airport on 23 August 2015. As he did not have a visa, he was denied entry into Russia. The BGS seized his passport. Mr A.M. 21. Mr A.M. is a Somalian national who was born in 1981. 22. In 2005 the applicant moved from Somalia, where he had worked as a journalist, to Yemen, and was granted refugee status there. In 2010 he went back to Somalia and worked as a journalist for a national TV channel in Mogadishu. 23. In the applicant’s submission, on 20 September 2012 members of the militant group Al-Shabaab carried out a terrorist attack next to the TV channel’s office to coerce its journalists into broadcasting extrajudicial killings that the group performed. As the applicant refused to obey them, his family was taken hostage. On 23 September 2012 one of the applicant’s sons, aged seven, was killed, and another received a blow as a result of which he was paralysed. The applicant himself was beaten and tortured. Eventually Mr A.M. and his remaining family managed to escape. In September 2012 the applicant again fled to Yemen. On 16 September 2012 he obtained a temporary residence permit valid until 15 September 2014. A copy of the Yemeni residence permit shows that it was issued on 16 September 2012 in Sana’a, Yemen. The applicant has provided no explanation for the discrepancy in dates regarding the terrorist attack of 20 September 2012 and the attack on his family of 23 September 2012. 24. In August 2014 Mr A.M. obtained Yemeni nationality and a Yemeni passport. In March 2015 the applicant decided to go to Cuba and apply for asylum there because of a personal conflict and the escalation of hostilities in Yemen. 25. In the Government’s submission, at the end of 2012 the applicant went to Yemen and set up a business there. Later the applicant had to move to Cuba because his former business partner had allegedly threatened him and kidnapped his wife. 26. On 12 March 2015 Mr A.M. travelled by air to Havana, Cuba. The journey consisted of three legs: Sana’a to Istanbul, Istanbul to Moscow and Moscow to Havana. On 13 March 2015 the applicant, who was in possession of a Russian transit visa, landed in Moscow for the first time. He then continued his journey to Havana. 27. The applicant had a valid one-month Cuban visa. According to the applicant, he requested asylum immediately upon arrival in Cuba but was not allowed to enter the country. His asylum request was not processed. Mr A.M. took a flight to Quito, Ecuador, where he unsuccessfully requested asylum and was denied entry into the country and access to the asylum procedure. The applicant was sent back to Cuba, where he was detained in a special detention facility for aliens. 28. On 9 April 2015 the applicant was deported from Cuba to Russia. 29. On 10 April 2015 the applicant arrived at Sheremetyevo Airport. He was not allowed to pass through passport control. The BGS seized his passport. Mr Yasien 30. Mr Hasan Yasien is a Syrian national who was born in 1975. 31. In 2004 and 2008 the applicant stayed in Russia for several months on business visas. 32. According to the applicant, in 2011 he left Syria for Lebanon because of the hostilities and unsuccessfully applied for temporary asylum there. Nine months later he returned to Syria to renew his passport. In June 2014 he left for Lebanon. On 11 June 2014 he obtained a Russian business visa valid until 25 August 2014 from the Russian embassy in Beirut. 33. On 4 July 2014 Mr Yasien arrived in Moscow from Beirut. After his business visa expired he remained in Russia. 34. On 8 September 2014 the Noginsk City Court of the Moscow Region (“the Noginsk Court”) found the applicant guilty of a breach of the migration rules and ordered his expulsion. 35. On 10 September 2014 Mr Yasien applied to the Moscow City Department of the Federal Migration Service (“the Moscow City FMS”) for temporary asylum. That application was refused on 8 December 2014. The applicant did not appeal against the refusal and remained in Russia. 36. On 17 August 2015 the Noginsk Court again found the applicant guilty of a breach of the migration rules and ordered his expulsion. 37. On 18 August 2015 the applicant took a flight from Moscow to Antalya, Turkey. The BGS seized his passport and handed it over to the aircraft crew. The Turkish authorities denied the applicant entry into the country and sent him back to Moscow, on 20 August 2015 according to the applicant and on 21 August 2015 according to the Government. Upon the applicant’s arrival in Moscow, the Russian authorities sent him back to Antalya. The Turkish authorities then returned the applicant to Moscow. 38. On 8 September 2015 the applicant took a flight to Beirut, but the Lebanese authorities denied him entry into the country and sent him back to Moscow. 39. On 9 September 2015 Mr Yasien arrived at Sheremetyevo Airport. The BSG did not allow him to pass through passport control and seized his passport. Conditions of the applicants’ stay in the Sheremetyevo Airport transit zoneSubmissions by the applicants Submissions by the applicants Submissions by the applicants 40. The applicants described the conditions of their stay in the airport transit zone as follows. 41. They had slept on a mattress on the floor in the boarding area of the airport, which had been constantly lit, crowded and noisy. There had been no showers readily available to them in the transit area. The only shower that was free of charge was located in the room for detainees and had been locked. Access to it had been conditional upon permission of the BGS officers, who had allowed the applicants to use it and provided them with the key several times during the first week of their stay. 42. The applicants had not had access to fresh air and had not been able to take any outdoor exercise. They had not had access to a notary, which had precluded them from issuing notarised powers of attorney required under Russian law to appoint a representative who could communicate with the public authorities on their behalf, or to medical, legal, social or postal services. All their requests for medical assistance had been dismissed; medical personnel had not been allowed to visit the applicants in the transit zone. 43. The applicants had not been in possession of their passports throughout the duration of their stay. The BGS officers had seized each applicant’s passport upon their arrival and had handed them to the aircraft crews only when the applicants were about to take a flight out of Sheremetyevo Airport. 44. The applicants’ access to a lawyer had remained within the discretion of the BGS officers on duty in the transit zone and “[had] never [been] guaranteed”. All meetings of the applicants with the lawyers who had been introduced to them by the Russian office of the UNHCR had taken place in the presence of two or three BGS officers. Submissions by the Government 45. In their written observations and oral submissions before the Grand Chamber, the Government did not provide any description of the material conditions of the applicants’ stay in the transit zone of Sheremetyevo Airport. The applicants’ asylum applications in Russia and the ensuing proceedingsMr Z.A. Mr Z.A. Mr Z.A. 46. On 29 July 2015 Mr Z.A. applied for refugee status in Russia through the BGS. 47. According to the applicant, about one month after that date the BGS officers had “forced [him] to rewrite his application changing the date of the initial request to the current one”, threatening him with expulsion to Iraq in order “to conceal their failure” to transmit the request to the Federal Migration Authority within three days. 48. On 17 September 2015 Mr Z.A. was interviewed in the airport transit zone by officers of the Moscow Regional Department of the Federal Migration Service (“the Moscow Region FMS”). 49. On 23 September 2015 the application for refugee status was accepted for examination on the merits. According to the applicant, the Moscow Region FMS did not issue him with an examination certificate (see paragraphs 99-100 below). According to the Government, an examination certificate was issued on 23 September 2015. The Government have enclosed a copy of the decision to issue a certificate but no copy of the document itself. 50. On 10 November 2015 the Moscow Region FMS dismissed Mr Z.A.’s request for asylum on the grounds that “the reason why the applicant left [Iraq] and why he is reluctant to return there is not in order to seek asylum but economic considerations and a difficult social and economic situation on the territory of [Iraq]. ” They concluded that the applicant had not put forward convincing reasons why he personally feared persecution. The applicant was notified accordingly on 14 November 2015. On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr Z.A. with an examination certificate and to assign him to a temporary accommodation centre. 51. On 3 December 2015 the applicant appealed to the Federal Migration Service of Russia (“the Russian FMS”), which, at the material time, prior to its dissolution by the Presidential Decree of 5 April 2016, served as the higher migration authority. He requested that the Russian FMS overrule the decision of 10 November 2015, issue him with an examination certificate, and assign him to a centre for the temporary detention of aliens. 52. On 29 December 2015 the Russian FMS dismissed the applicant’s appeal. 53. On 1 February 2016 the applicant lodged an appeal against the decisions of 10 November and 29 December 2015 with the Basmannyy District Court of Moscow (“the Basmannyy Court”). 54. On 5 February 2016 the UNHCR recognised the applicant as a person in need of international protection and started a resettlement procedure. 55. On 17 March 2016, having been resettled by UNHCR, the applicant left for Denmark. 56. On 12 May 2016 the Basmannyy Court upheld the Russian FMS’s decision. On the same date the applicant’s lawyer lodged a brief statement of appeal (краткая апелляционная жалоба), pending receipt of a reasoned judgment in written form. Subsequently the Basmannyy Court discontinued the proceedings on the grounds that the applicant’s lawyer could not obtain a notarised authority form following the resettlement. Mr M.B. 57. Three weeks after his arrival at Sheremetyevo Airport the applicant applied for refugee status in Russia through the BGS. Neither party has submitted the exact date; if calculated from 23 August 2015, the date of Mr M.B.’s arrival at Sheremetyevo Airport, the date would fall on 13 September 2015. 58. On 14 November 2015 the Moscow Region FMS officers interviewed Mr M.B. in the airport transit zone. 59. On 20 November 2015 Mr M.B.’s application for refugee status was accepted for examination on the merits. According to the Government, an examination certificate was issued on the same date. The Government have enclosed a copy of the decision to issue a certificate but no copy of the document itself. According to the applicant, the Moscow Region FMS did not provide Mr M.B. with such a certificate. 60. On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr M.B. with an examination certificate and to assign him to a temporary accommodation centre. 61. On the same date the Moscow Region FMS dismissed Mr M.B.’s application for refugee status on the grounds that “the reason why the applicant left Palestine and why he is reluctant to return there is not in order to seek asylum but the poor social and economic situation in the territory of Palestine.” They concluded that the applicant had not put forward convincing reasons why he personally feared persecution. 62. On 21 December 2015 the applicant’s lawyer appealed to the Russian FMS. On 31 December 2015 the Russian FMS dismissed the appeal. 63. On 1 February 2016 the applicant lodged an appeal against the Russian FMS’s decision with the Basmannyy Court. 64. On 13 February 2016 the Egyptian authorities opened the Rafah crossing point to Gaza. The applicant agreed to take a flight to Egypt and left the transit zone of Sheremetyevo Airport. 65. On 12 May 2016 the Basmannyy Court upheld the Russian FMS’s decision. The applicant’s lawyer lodged a brief statement of appeal on the same date, pending receipt of a reasoned judgment in written form. Later, the Basmannyy Court discontinued the proceedings on the grounds that the applicant’s lawyer could not obtain a notarised authority form following the departure and thus could not lodge a detailed statement of appeal. Mr A.M. 66. The applicant applied for refugee status in Russia through the BGS (according to the applicant, on 10 April 2015; according to the Government, on 11 April 2015). 67. On 1 July 2015 the Moscow Region FMS interviewed the applicant in the airport transit zone. 68. In the applicant’s submission, on 1 July 2015 his application was accepted for examination on the merits. However, he was not issued with an examination certificate. In the Government’s submission, an examination certificate was issued on 7 July 2015. The Government have enclosed a copy of the decision to issue a certificate but no copy of the document itself. 69. On 1 October 2015 the Moscow Region FMS dismissed the application for refugee status on the grounds that the applicant’s family had continued living in Somalia without being persecuted and that he had worked in Yemen. They concluded that the applicant had not left Somalia for any of the reasons listed in Federal Law FZ-4528-1 of 19 February 1993 (with amendments, hereinafter “the Refugees Act”), and thus could be deported there. The applicant was informed accordingly on 3 November 2015, but claimed that he had not been served with a copy of the decision rejecting his application. 70. On 24 November 2015 Mr A.M. appealed against the decision of 1 October 2015 to the Russian FMS. 71. On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr A.M. with an examination certificate and to assign him to a temporary accommodation centre. 72. On 7 December 2015 the Russian FMS dismissed the applicant’s appeal against the decision of 1 October 2015 on the grounds that he had been unwilling to return to Yemen because of threats from a third person but nothing prevented him from returning to Somalia in the absence of convincing claims of persecution there. It also noted that the applicant had expressed his readiness to go to Somalia. 73. On 15 December 2015 Mr A.M. applied for temporary asylum through the BGS. 74. On 29 December 2015 the applicant lodged an appeal with the Basmannyy Court against the Russian FMS’s decision of 7 December 2015 rejecting his application for refugee status. 75. On 22 December 2015 the Moscow Region FMS refused the application for temporary asylum as unsubstantiated on the grounds that the applicant had applied for it merely in order to legitimise his situation in Russia. The applicant was notified accordingly, on 25 December 2015 according to the Government and on 28 December 2015 according to the applicant. 76. On 10 February 2016 the Russian FMS rejected an appeal against the Moscow Region FMS’s decision of 22 December 2015 regarding temporary asylum on the grounds that the applicant had been unwilling to return to Yemen because of the threats from a third person but nothing prevented him from returning to Somalia in the absence of convincing claims of persecution there. They also noted that the applicant had expressed his readiness to go to Somalia. 77. On 24 February 2016 the UNHCR recognised the applicant as a person in need of international protection. 78. On 19 May 2016 the Basmannyy Court dismissed an appeal lodged by the applicant on 11 March 2016 against the decisions of the Moscow Region FMS and the Russian FMS dismissing his application for temporary asylum. It reasoned, in particular, that the applicant had not proved that the terrorists who had threatened him in 2005 represented any danger more than ten years later and that, should such threats persist, he “ha[d] not been deprived of an opportunity to avail himself of the protection of his State of nationality [that is to say] to apply to the law-enforcement agencies of the Republic of Somalia [for protection].” The applicant’s lawyer appealed against the judgment on 31 May 2016. 79. On 12 September 2016 the Basmannyy Court upheld the Russian FMS’s decision of 7 December 2015 concerning the application for refugee status. 80. On 20 September 2016 the Moscow City Court dismissed his appeal against the Basmannyy Court’s judgment of 19 May 2016 concerning the application for temporary asylum on the grounds that the situation in Somalia had not changed since the applicant’s application for refugee status had been rejected, and that there were no humanitarian grounds that would warrant granting him temporary asylum. It was also noted that the applicant had abused his right to apply to court by trying to circumvent the legal procedure for legitimising his situation in Russia. 81. On 6 February 2017 the Moscow City Court dismissed his appeal against the Basmannyy Court’s judgment of 12 September 2016 concerning the application for refugee status on the grounds that the applicant had not needed asylum at the moment of “crossing the State border of the Russian Federation” because he had not provided proof of the existence of a real threat in the event of his return to Somalia. 82. According to the applicant, having received the final rejections of his applications for refugee status and temporary asylum from the Russian authorities, he decided that he did not have any chance of obtaining asylum in Russia and informed the BGS that he agreed to leave for Mogadishu, Somalia. On 9 March 2017 the UNHCR obtained the agreement of Turkish Airlines to provide Mr A.M. with a ticket to Mogadishu via Istanbul. The officers of the Federal Security Service escorted the applicant to Vnukovo Airport of Moscow, ensured that he boarded the aircraft and handed his passport over to the crew. Since then the applicant has resided in Mogadishu, where he has abandoned journalism “to escape the attention of the terrorists”. Mr Yasien 83. According to the Government, Mr Yasien applied for temporary asylum on 19 September 2015. 84. According to the applicant, on that date he applied for refugee status through the BGS. His application was allegedly lost. The applicant lodged a new application for refugee status on 5 October 2015. 85. On 3 November 2015 the Moscow Region FMS interviewed the applicant in the airport transit zone. 86. According to the applicant, the Moscow Region FMS accepted his application for examination on the merits on 3 November 2015 but did not provide him with an examination certificate. In his submission, it was a well ‑ established practice of the migration authorities to issue, but not deliver, examination certificates to detained asylum-seekers. The certificates of asylum-seekers in detention were kept at the migration service office together with the case files. 87. On 1 December 2015 the applicant’s lawyer requested the Moscow Region FMS to issue Mr Yasien with an examination certificate and to assign him to a temporary accommodation centre. 88. On 21 December 2015 the Moscow Region FMS dismissed Mr Yasien’s application for temporary asylum although the applicant had applied for refugee status, not temporary asylum. The grounds for rejection were as follows: the applicant’s economic situation in Syria had been unsatisfactory so he had left the country for economic reasons, and he had applied for temporary asylum to legitimise his situation in Russia in order to have an opportunity to work there. The applicant was notified accordingly, on 23 December 2015 according to the applicant and on 25 December 2015 according to the Government. According to the applicant, he was not served with a copy of the decision. 89. On 29 December 2015 Mr Yasien again submitted his application for refugee status through the BGS. 90. On 12 January 2016 the applicant appealed, through his lawyer, against the decision of 21 December 2015 to the Russian FMS. He emphasised that on 19 September and 5 October 2015 he had applied for refugee status, while the decision in question concerned temporary asylum, and that for unknown reasons the Moscow Region FMS had substituted the temporary asylum procedure for the refugee status procedure. The applicant referred to the grave humanitarian crisis in Syria and submitted that, in breach of the Refugees Act, the Moscow Region FMS had not issued him with an examination certificate. 91. On 4 February 2016 the Russian FMS dismissed the appeal and upheld the decision of 21 December 2015. It noted, in particular, that there were regular flights from Moscow to Damascus, from where Syrian nationals could travel to other parts of the country under the control of the Government of Syria, and that “many Syrians wish[ed] to leave the country not only because of a fear for their lives but, in large part, because of the worsening economic and humanitarian situation”. The Russian FMS did not address the applicant’s argument regarding the replacement of the refugee status procedure with the one for temporary asylum. 92. On 7 April 2016 the applicant once again lodged an application for refugee status through the BGS. He received no response. 93. On 11 April 2016 the applicant complained to the Zamoskvoretskiy District Court of Moscow (“the Zamoskvoretskiy Court”) about the decisions of 21 December 2015 and 4 February 2016 and the inaction of the Russian FMS. 94. On 21 April 2016 the UNHCR recognised the applicant as a person in need of international protection and started a resettlement procedure. 95. On 11 May 2016 the applicant was resettled by the UNHCR and left for Sweden. 96. On 31 August 2016 the Zamoskvoretskiy Court upheld the Russian FMS’s decision of 4 February 2016. | This case concerned four men from Iraq, the Palestinian territories, Somalia and Syria who were held for long periods of time in the transit zone of Moscow’s Sheremetyevo airport while the authorities dealt with their asylum applications. They all eventually left Russia after living in the transit zone. The applicants alleged in particular that their confinement in the transit zone had amounted to unlawful deprivation of liberty. |
274 | Information about the date on which the measures ceased to apply | I. PARTICULAR CIRCUMSTANCES OF THE CASE A. Terence Patrick Brogan 11. The first applicant, Mr Terence Patrick Brogan, was born in 1961. He is a farmer and lives in County Tyrone, Northern Ireland. 12. He was arrested at his home at 6.15 a.m. on 17 September 1984 by police officers under section 12 of the Prevention of Terrorism (Temporary Provisions) Act 1984 ("the 1984 Act"). He was then taken to Gough Barracks, Armagh, where he was detained until his release at 5.20 p.m. on 22 September 1984, that is a period of detention of five days and eleven hours. 13. Within a few hours of his arrest, he was questioned about his suspected involvement in an attack on a police mobile patrol which occurred on 11 August 1984 in County Tyrone and resulted in the death of a police sergeant and serious injuries to another police officer. He was also interrogated concerning his suspected membership of the Provisional Irish Republican Army ("IRA"), a proscribed organisation for the purposes of the 1984 Act. He maintained total silence and refused to answer any questions put to him. In addition, he turned away from his questioners and stared at the floor, ceiling or wall and periodically stood to attention. He was visited by his solicitor on 19 and 21 September 1984. B. Dermot Coyle 14. The second applicant, Mr Dermot Coyle, was born in 1953. He is at present unemployed and lives in County Tyrone, Northern Ireland. 15. He was arrested at his home by police officers at 6.35 a.m. on 1 October 1984 under section 12 of the 1984 Act. He was then taken to Gough Barracks, Armagh, where he was detained until his release at 11.05 p.m. on 7 October 1984, that is a period of detention of six days and sixteen and a half hours. 16. Within a few hours of his arrest, he was questioned about the planting of a land-mine intended to kill members of the security forces on 23 February 1984 and a blast incendiary bomb attack on 13 July 1984, both of which occurred in County Tyrone. He was also interrogated about his suspected provision of firearms and about his suspected membership of the Provisional IRA. He maintained complete silence apart from one occasion when he asked for his cigarettes. In one interview, he spat several times on the floor and across the table in the interview room. He was visited by his solicitor on 3 and 4 October 1984. C. William McFadden 17. The third applicant, Mr William McFadden, was born in 1959. He is at present unemployed and lives in Londonderry, Northern Ireland. 18. He was arrested at his home at 7.00 a.m. on 1 October 1984 by a police officer under section 12 of the 1984 Act. He was then taken to Castlereagh Police Holding Centre, Belfast, where he was detained until his release at 1.00 p.m. on 5 October 1984, that is a period of four days and six hours. 19. Within a few hours of his arrest, he was questioned about the murder of a soldier in a bomb attack in Londonderry on 15 October 1983 and the murder of another soldier during a petrol bomb and gunfire attack in Londonderry on 23 April 1984. He was also interrogated about his suspected membership of the Provisional IRA. Apart from one interview when he answered questions of a general nature, he refused to answer any questions put to him. In addition, he periodically stood up or sat on the floor of the interview room. He was visited by his solicitor on 3 October 1984. D. Michael Tracey 20. The fourth applicant, Mr Michael Tracey, was born in 1962. He is an apprentice joiner and lives in Londonderry, Northern Ireland. 21. He was arrested at his home at 7.04 a.m. on 1 October 1984 by police officers under section 12 of the 1984 Act. He was then taken to Castlereagh Royal Ulster Constabulary ("RUC") Station, Belfast, where he was detained until his release at 6.00 p.m. on 5 October 1984, that is a detention period of four days and eleven hours. 22. Within a few hours of his arrest, he was questioned about the armed robbery of post offices in Londonderry on 3 March 1984 and 29 May 1984 and a conspiracy to murder members of the security forces. He was also interrogated concerning his suspected membership of the Irish National Liberation Army ("INLA"), a proscribed terrorist organisation. He remained silent in response to all questions except certain questions of a general nature and sought to disrupt the interviews by rapping on heating pipes in the interview room, singing, whistling and banging his chair against the walls and on the floor. He was visited by his solicitor on 3 October 1984. E. Facts common to all four applicants 23. All of the applicants were informed by the arresting officer that they were being arrested under section 12 of the 1984 Act and that there were reasonable grounds for suspecting them to have been involved in the commission, preparation or instigation of acts of terrorism connected with the affairs of Northern Ireland. They were cautioned that they need not say anything, but that anything they did say might be used in evidence. 24. On the day following his arrest, each applicant was informed by police officers that the Secretary of State for Northern Ireland had agreed to extend his detention by a further five days under section 12(4) of the 1984 Act. None of the applicants was brought before a judge or other officer authorised by law to exercise judicial power, nor were any of them charged after their release. | The four applicants, suspected of terrorist acts, were arrested by the police in Northern Ireland in September and October 1984 and, after being questioned for periods ranging from four days and six hours to six days and sixteen and a half hours, were released without having been charged or brought before a judge. The United Kingdom Government referred extensively to the existence of particularly difficult circumstances in Northern Ireland, notably the threat posed by organised terrorism. |
856 | Interception of communications, phone tapping and secret surveillance | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1989 and lives in Newtownabbey, Northern Ireland. A. Background 6. In 2006 a solicitor in Northern Ireland was arrested and charged with a number of offences, including inciting paramilitaries to murder and perverting the course of justice. The case arose out of the covert recording of his consultations with clients at Antrim police station. As a direct consequence of the criminal proceedings, solicitors in Northern Ireland became aware that their private consultations with detainees in police stations and prisons could be the subject of covert surveillance. Thereafter, solicitors attending detainees in police stations and prisons began to seek assurances from the police that their consultations would not be the subject of such surveillance. 7. When the police refused to give assurances, judicial review proceedings were initiated on the basis that there had been a breach of the common law right to legal and professional privilege, the statutory right to a private consultation with a lawyer, and Articles 6 and 8 of the Convention. 8. In the case of Re C & Others [2007] NIQB 101A the Divisional Court of the High Court of Justice in Northern Ireland found that, despite the express statutory right to private consultations, the covert surveillance of lawyer-client consultations was permitted by the Regulation of Investigatory Powers Act 2000 (“RIPA”). However, RIPA provided for two principal surveillance schemes: intrusive surveillance and directed surveillance. At the time of the hearing, covert surveillance of legal consultations was being treated as directed surveillance, which was the least restrictive of the two schemes. The Divisional Court held that the fundamental right of a detained person to consult a legal adviser privately necessitated an enhanced authorisation scheme and that protections afforded by the directed as opposed to the intrusive surveillance scheme offered insufficient protection. If the surveillance of consultations between legal advisers and clients in police custody was to be lawful for the purposes of Article 8 of the Convention, the safeguards for the carrying out of intrusive surveillance had to apply. 9. The applicants in these judicial review proceedings appealed against the court ’ s ruling that the surveillance was permitted by the domestic legislation. The appeal went to the House of Lords, where it was referred to as Re McE (Northern Ireland) [2009] UKHL 15. The House of Lords agreed with the Divisional Court that although the provisions of RIPA could override, inter alia, legal professional privilege, the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued. 10. As the Police Service of Northern Ireland (“PSNI”) had not appealed against the Divisional Court ’ s ruling that the use of the directed surveillance scheme had breached Article 8 of the Convention, the House of Lords criticised the Secretary of State for not having taken any steps to ensure that covert surveillance of legal consultations was not treated as directed surveillance. 11. Following the decision of the House of Lords in Re McE the Regulation of Investigatory Powers (Extension of Authorisation Provisions: Legal Consultations) Order 2010 (“the 2010 Order”) was adopted and on 6 April 2010 a revised Covert Surveillance Code of Practice (“the Revised Code”) came into effect. Pursuant to the 2010 Order, directed surveillance of consultations between a detainee and his or her professional legal adviser, representative or medical practitioner in connection with legal proceedings was to be treated, for the purposes of RIPA, as intrusive surveillance. B. The facts of the present case 12. On 15 March 2009 the applicant was arrested in connection with the murder of a Police Constable believed to have been killed by dissident Republicans. 13. When first arrested the applicant was assessed by the Forensic Medical Officer as a “vulnerable person” within the meaning of the Terrorism Act Code of Practice. Pursuant to paragraph 11.9 of that Code of Practice, he could not be interviewed, save in exceptional circumstances, in the absence of an “appropriate adult”. In the case of a person who was mentally vulnerable, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. However, prior to being seen by either a solicitor or an appropriate adult, the applicant asked to speak to the officers in charge of the investigation “off the record”. He was interviewed by police officers in the absence of a solicitor or an appropriate adult and during the course of that interview he gave information which led to the recovery of the gun used in the Constable ’ s murder. 14. The applicant was detained in custody for twelve days. During this time he was twice seen by a Consultant Psychiatrist and on each occasion he was assessed as being vulnerable and requiring the presence of an appropriate adult. Also during this time his solicitor obtained an assurance from the PSNI that his consultations with the applicant would not be subject to covert surveillance. 15. On 25 March 2009 the applicant was charged with withholding information about the Constable ’ s murder. 16. Following the charge the applicant was detained in custody on the ground that if released he would be at risk of harm from dissident Republicans. 17. The applicant was released on bail on 8 June 2009. He was arrested and questioned on a further occasion in October 2009 but was subsequently released without charge. 18. On 4 May 2010 the applicant was arrested for a third time in connection with the Constable ’ s murder. Following his arrest his solicitor again sought an assurance from the PSNI that his consultations would not be subjected to covert surveillance. The PSNI informed him that “[they could] neither confirm nor deny whether any form of covert surveillance has been conducted in any instance. Covert surveillance is regulated by the Regulation of Investigatory Powers Act 2000, related statutory instruments and the Revised [Covert Surveillance] Code of Practice”. 19. The applicant sought permission to apply for judicial review of the PSNI ’ s refusal to give an undertaking that his consultations with his solicitor would not be subjected to covert surveillance. In particular, he alleged that the grounds upon which the authorisation of such surveillance would be appropriate were not sufficiently clearly defined and that the guidance concerning the securing and destruction of legally privileged confidential information was not sufficiently clear or precise. 20. On 6 May 2010 he was granted permission to apply for judicial review. In granting permission, the court directed that any subsequent consultations with his solicitor and his medical adviser should not be subject to covert surveillance. 21. On 7 May 2010 the applicant had his first consultation with a Consultant Psychiatrist. 22. The applicant was released without charge on 8 May 2010. 23. The charge of withholding evidence appears to have concluded without trial. C. The domestic proceedings 24. The hearing of the judicial review application took place before a Divisional Court of the High Court of Justice in Northern Ireland on 28 June 2010. On 21 September 2010 the Divisional Court dismissed the applicant ’ s claim. 25. In dismissing the claim, the court relied on Kennedy v. the United Kingdom, no. 26839/05, 18 May 2010, which found that the regime under Part I of RIPA was compatible with Articles 6 and 8 of the Convention. Although it noted that Kennedy was concerned only with Part I of RIPA, the court considered that the reasoning expressed was “very relevant in view of the parallels between Part I and Part II of the surveillance legal regimes”. 26. The court found, in particular, that reading RIPA, the 2010 Order and the Revised Code together it was clear that a surveillance operation could only properly be justified if it was a truly proportionate response to a real risk posed by the individual who was the subject of the surveillance, and if the potential usefulness of the surveillance was demonstrably shown. As the Court had indicated in Kennedy, the requirement of foreseeability did not require an exhaustive definition of all conduct that might justify a decision on, for example, national security grounds, and similar reasoning applied in the present case. Consequently, the court held that the wording in the Revised Code was sufficiently clear. 27. With regard to the applicant ’ s second allegation, the court accepted that the statutory provisions under Part I of RIPA, which had been considered by the Court in Kennedy, were more detailed, prescriptive and precise than those in Part II. However, taking together the 2010 Order, the Revised Code and the PSNI Service Procedure Implementing Code, the arrangements in place for the use, retention and destruction of retained material in the context of legal consultations was compliant with the Article 8 rights of persons in custody. Moreover, as the Revised Code made it clear that material subject to legal professional privilege was not admissible in court and should be safeguarded by the taking of steps to ensure that it did not prejudice any criminal or civil proceedings, a breach of Article 6 of the Convention would not occur. While there was a risk of a potential “chill factor” (insofar as clients might be less than frank with their solicitors if they were concerned that they were under covert surveillance), the court considered that the revised Code was sufficiently detailed and precise to reassure those in custody that, save in exceptional circumstances, their consultations with lawyers would be in private. 28. Finally, the court observed that the special considerations which applied to consultations with lawyers or doctors did not apply in the case of meetings with an appropriate adult. It therefore followed that surveillance of such meetings could be authorised as directed surveillance rather than intrusive surveillance. 29. On 9 November 2010 the Divisional Court heard an application for leave to appeal to the Supreme Court. Leave to appeal was refused although the court certified four questions of law of general public importance. These were as follows: “a. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 6 ECHR in as much as they permit the covert surveillance of legally privileged consultations and the retention of material deriving from legally privileged consultations? b. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and (i) his/her solicitor (ii) his/her medical practitioner and/or (iii) an appropriate adult violate Article 8 ECHR as a result of:- (i) a lack of precision and clarity in the guidance governing the authorisation of such surveillance; and/or (ii) inadequate guidance as to how and when legally privileged material obtained from such surveillance should be handled, stored, used and destroyed. c. Is the Police Service of Northern Ireland ’ s Service Procedure “in accordance with the law” within the meaning of Article 8 ECHR? d. Do the current arrangements for authorisation of covert surveillance of consultations between a detained person and an appropriate adult violate Article 8 ECHR because such surveillance can be authorised as directed rather than intrusive surveillance?” 30. An application for permission to appeal to the Supreme Court was refused by the Supreme Court on 11 April 2011. i. Surveillance Commissioners 76. Section 91(2) of the Police Act 1997 (“the 1997 Act”) provides that the ordinary Surveillance Commissioners and the Chief Surveillance Commissioner must hold or have held high judicial office. They are appointed for fixed terms of three years and they enjoy statutory protection from arbitrary removal from office. 77. Section 62(1) of RIPA requires the Chief Surveillance Commissioner to keep under review the exercise and performance of the powers and duties conferred by Part II of the Act. He may be assisted in the performance of his duties by Assistant Surveillance Commissioners. 78. The ordinary Surveillance Commissioners have power to quash authorisations and to order the destruction of any records relating to information obtained by the authorised conduct (section 37(1) – (5) of RIPA). j. The Investigatory Powers Tribunal 79. The Investigatory Powers Tribunal (“ IPT ”) was established under section 65(1) of RIPA to hear allegations by citizens of wrongful interference with their communications as a result of conduct covered by RIPA. Members of the IPT must hold or have held high judicial office or be a qualified lawyer of at least ten years ’ standing. Any person may bring a claim before the IPT and, save for vexatious or frivolous applications, the IPT must determine all claims brought before it (sections 67(1), (4) and (5) RIPA). 80. Section 65(2) of RIPA provides that the IPT is the only appropriate forum in relation to proceedings for acts incompatible with Convention rights which are proceedings against any of the intelligence services and complaints by persons who allege to have been subject to the investigatory powers of RIPA. It has jurisdiction to investigate any complaint that a person ’ s communications have been intercepted and, where interception has occurred, to examine the authority for such interception. Sections 67(2) and 67(3)(c) provide that the IPT is to apply the principles applicable by a court on an application for judicial review. 81. Under section 67(8) of RIPA, there is no appeal from a decision of the IPT “except to such extent as the Secretary of State may by order otherwise provide”. No order has been passed by the Secretary of State. 82. Under section 68(2), the IPT has the power to require a relevant Commissioner to provide it with all such assistance (including the Commissioner ’ s opinion as to any issue falling to be determined by the IPT) as it thinks fit. 83. Section 68(4) deals with reasons for the IPT ’ s decisions and provides that: “Where the Tribunal determine any proceedings, complaint or reference brought before or made to them, they shall give notice to the complainant which (subject to any rules made by virtue of section 69(2)(i)) shall be confined, as the case may be, to either— (a) a statement that they have made a determination in his favour; or (b) a statement that no determination has been made in his favour.” 84. The IPT has the power to award compensation and to make such other orders as it thinks fit, including orders quashing or cancelling any warrant or authorisation and requiring the destruction of any records obtained (section 67(7) RIPA). In the event that a claim before the IPT is successful, the IPT is generally required to make a report to the Prime Minister (section 68(5)). C. Police Service of Northern Ireland Service Procedure, “Covert Surveillance of Legal Consultations and the Handling of Legally Privileged Material” 85. The Service Procedure was issued and implemented on 22 June 2010. Its aim is to set out the position of the PSNI regarding the steps to be taken in relation to any material which is obtained by virtue of the covert surveillance of legal consultations. 86. Section 6 of the Service Procedure echoes the Revised Code in making clear that deliberately acquired knowledge of legally privileged matters cannot be admitted in court and is to be kept separate from law enforcement investigations and criminal prosecutions. 87. The section further provides guidance on the retention, destruction and handling of material subject to legal privilege. In particular, it provides that legally privileged material must clearly be marked as such and dissemination should be limited to authorised persons; the material should be handled in a manner consistent with the procedures set out for the storage and handling of classified material; legally privileged material that is deliberately acquired will only be disseminated for the purpose of countering the identified threat; legally privileged material that is acquired and is not deemed relevant must not be copied or disseminated; the master and working copy must be sealed and securely stored; material subject to legal privilege must not be used to further other investigations unless explicitly approved within the authorisation or any review; the copying and handling of any material must be fully audited; material subject to legal privilege will not be recorded on the PSNI intelligence databases; dissemination to an outside body will only be considered when it is necessary and material so disseminated will retain any additional handling conditions which must be notified to that body as a condition of dissemination; any PSNI employee given access to the information will be required to sign to confirm that they will not disclose the material other than in accordance with the Dissemination Policy; material subject to legal privilege will only be retained as long as necessary to counter the threat in respect of which it was obtained or to comply with other statutory obligations; where any such obligations have been discharged the senior authorising officer will direct that the material be destroyed and disposal should be witnessed by a legal advisor; and, finally, a legal advisor will be consulted on all aspects of the acquisition, retention, handling, dissemination and disposal of legally privileged material. D. The July 2005 Criminal Procedure and Investigations Act 1996 Code of Practice for Northern Ireland (“the CIPA Code”) 88. The CIPA Code sets out the manner in which police officers are to record, retain and reveal to the prosecutor material obtained in a criminal investigation which may be relevant to the investigation. Insofar as intrusive surveillance by the PSNI results in the acquisition of material that was not legally privileged, its retention and potential use or disclosure in any subsequent criminal proceedings is governed by CIPA. E. The Data Protection Act 1998 (“DPA”) 89. Material obtained as a result of intrusive surveillance of legal consultations will generally be “personal data” for the purposes of the DPA and in certain circumstances may amount to “sensitive personal data”. Moreover, the PSNI is a “data controller” for the purposes of that Act. Therefore, the PSNI must in general comply with the data protection principles set out in Part I of Schedule 1. 90. As read with paragraph 5 of Schedule 2 to the DPA, the first data protection principle permits the PSNI to process personal data insofar as it is “necessary” for the exercise of any of its public functions. More restrictive conditions apply in respect of sensitive personal data. 91. Pursuant to the fifth personal data principle, personal data should be destroyed as soon as it is no longer necessary for the PSNI to retain it for the purpose for which it was being processed. 92. The Information Commissioner, an independent regulator, oversees compliance with the DPA by data controllers. He has the power to impose a fine of up to GBP 500,000 in the event of serious contravention of the data protection principles by a data controller. F. Guidance relating to “appropriate adults” 93. The Police and Criminal Evidence Act 1984 Code of practice in connection with the detention, treatment and questioning by police officers of persons under section 41 of, and Schedule 8 to, the Terrorism Act 2000 sets out the circumstances in which an appropriate adult should be appointed. 94. Pursuant to paragraph 11.9 of the Code, a juvenile or person who is mentally disordered or otherwise mentally vulnerable should not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult. 95. According to paragraph 1.13, an appropriate adult could be a relative or guardian, or a person experienced in dealing with mentally disordered or mentally vulnerable people. 96. Paragraph 3.17 provides that the appropriate adult must be informed by police “as soon as practicable” of the arrest and detention of the mentally disordered or mentally vulnerable person and the adult must be asked to come to the police station. Paragraph 3.19 further provides that the detainee should be advised that the duties of the appropriate adult “include giving advice and assistance” and that they can “consult privately ... at any time”. | The applicant, who was arrested and detained in Northern Ireland on three occasions in connection with the murder of a police officer, complained in particular about the regime for covert surveillance of consultations between detainees and their lawyers and between vulnerable detainees4 and “appropriate adults”5. |
738 | Noise pollution | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1950 and lives in Alsónémedi. 6. It appears that from early 1997 the volume of cross -town traffic in Alsónémedi increased, since a toll had been introduced on the neighbouring, privately owned motorway M5. In order to avoid the rather high toll charge, many trucks chose alternative routes including the street (a section of national road no. 5201) in which the applicant's house is situated. 7. To counter this situation, from 1998 onwards three bypass roads were built; and several measures, including a 40 km/h speed limit at night, were implemented in order to discourage traffic in the neighbourhood. Two nearby intersections were provided with traffic lights. In 2001 road signs prohibiting the access of vehicles of over 6 tons and re-orientating traffic were put up along an Alsónémedi thoroughfare, an arrangement which also affected the applicant's street. The Government submitted that compliance with these measures had been enforced by the increased presence of the police in general in Alsónémedi and in particular in the applicant's street; in the applicant's view, however, no effective enforcement was in place. 8. In or about 1997 the applicant observed damage to the walls of his house. He obtained the opinion of a private expert, who stated that the damage was due to vibrations caused by the heavy traffic. The applicant also alleges that, because of the increased noise and pollution due to exhaust fumes, his home has become almost uninhabitable. 9. On 23 February 1999 the applicant brought an action in compensation against the Pest County State Public Road Maintenance Company before the Buda Central District Court. He claimed that, due to increased freight traffic in his street, the walls of his house had cracked. The case was transmitted to the Budapest Regional Court for reasons of competence on 11 March 1999. On 11 November, 16 December 1999 and 30 March 2000, the court held hearings. On 6 April 2000 it dismissed the claims. 10. On appeal, the Supreme Court, acting as a second-instance court, held a hearing on 30 January 2002, quashed the first-instance judgment and remitted the case. 11. In the resumed proceedings, on 2 June 2002 the Regional Court appointed as expert the Department of Road Construction at Budapest Technical University. The latter presented an opinion on 20 January 2004 which was discussed at the hearing of 29 April 2004. The expert stated that the level of noise outside the applicant's house had been measured as 69.0 dB(A) on 5 May and 67.1 dB(A) on 6 May 2003, daytime on both occasions, as opposed to the applicable statutory limit of 60 dB(A). On 10 June 2004 the court held another hearing and ordered the supplementation of the opinion, which was done on 15 September 2004. 12. On 17 February 2005 the Regional Court dismissed the applicant's claims. It relied on the opinion of the expert, documentary evidence and the testimony of the parties. It refused the applicant's motion to obtain the opinion of another expert since it was of the view that the original opinion was thorough and precise. 13. The court noted the expert's opinion that the vibration, as measured on the scene, was not strong enough to cause damage to the applicant's house, nor could the traffic noise entail cracks in its walls although it was higher than the statutory level. The court therefore concluded that no causal link could be established between the measures adopted by the respondent authority and the damage to the house. The court observed that the respondent had spent more than one billion Hungarian forints on developing the road system in the area, constructed four roundabouts and put up several road signs and traffic lights in order to divert traffic from Alsónémedi. In sum, it had carried out every measure with a view to sparing Alsónémedi from heavy traffic and limiting the speed of cross-town traffic that could reasonably be expected in the circumstances to protect the applicant's interest. The respondent had to balance competing interests, since the barring of heavy vehicles from a public road might have been advantageous to the inhabitants of Alsónémedi but could have caused disproportionate prejudice to the other users or providers of public and private transportation. 14. On 15 November 2005 the Budapest Court of Appeal dismissed the applicant's appeal. | This case concerned nuisance caused to a resident by heavy traffic in his street, situated near a motorway operating a toll. The applicant complained that, because of the noise, pollution and smell caused by the heavy traffic in his street, his home had become almost uninhabitable. He further complained that the length of the court proceedings he had brought on the matter had been excessive. |
743 | Soil and water contamination | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1961 and lives in the village of Tatariv, which forms part of Yaremche, a resort town in the Ivano-Frankivsk Region of Ukraine. A. Background to the case 7. The applicant owns a house and an adjacent plot of land in Tatariv. The village of Tatariv is situated in a mountainous region and because of its location holds the status of mountainous residential area. It is also known as a resort for “green tourism” in Carpathy region. It is situated on the banks of Prut river. 8. On 10 February 2000 Tatariv Village Council (“ Tatariv Council”), having considered four sites on which to construct a new cemetery, chose the land previously occupied by garages belonging to a company called Vorokhtya Lisokombinat (“the VL plot”) as it was not occupied, it was located in the village and the cemetery could be constructed at low cost. 9. The VL plot is located near the applicant ’ s house (for further details see paragraphs 1 4 and 3 3 below), in which he was residing with his family at the time. Two rivers flow at a distance of 30 and 70 metres from the VL plot. Drinking water for Tatariv comes from wells fed by groundwater; there is no centralised water supply system and the wells are not protected. 10. On 24 May 2000 the All-Ukrainian Bureau of Environmental Investigations informed the Chairman of Yaremche Town Council (“ Yaremche Council”) that the construction of the cemetery on the VL plot might cause contamination of the river and the wells situated on adjacent plots of land by ptomaine carried by the groundwater flow. 11. The cemetery was opened for use by the Yaremche Council in August 2000. It is being administered by the Yaremche Council. 12. On 6 February 2001 the Yaremche Environmental Health Inspectorate ( санітарно-епідеміологічна станція ) concluded that the cemetery should not have been constructed on the VL plot in view of its proximity to residential buildings and the risk of contamination of the surrounding environment by ptomaine. 13. On 20 August 2002 the Regional Environmental Health Inspectorate of the Ministry of Health refused to approve the construction plan. In particular, it stated that the cemetery should not be situated in the proposed area as its distance from private housing did not comply with the norms and standards of a health protection zone ( санітарно-захисна зона ). 14. On 30 August 2002 and 20 January 2003 the Marzeyev Institute of Hygiene and Medical Ecology, part of the Academy of Medical Sciences, informed the applicant and Yaremche Council that another location would have to be found for the cemetery. It was of the view that constructing the cemetery on the VL plot would breach environmental health laws and regulations and would worsen the living conditions of the residents of adjacent houses. In particular, it would be located less than 300 metres from the nearest residential buildings, which are 38 metres away from the edge of the cemetery (which would not allow for the establishment of the necessary health protection zone). It could lead to contamination of the groundwater reservoir used by the residents of adjacent households for drinking water and of the nearby rivers with by-products of human decomposition. It further stated that a health protection zone was also intended to reduce psychological pressure on the residents of adjacent houses. 15. The applicant alleges that from 2002 to the present moment he has been receiving treatment for hypertension and various cardio-related diseases. He supplied in this respect sick leave certificates and medical certificates from 2002 and 2006, relating to him and his wife. He has also provided the Court with death certificates for two of his neighbours Mr R.G. and Mr D.B., who also resided in the vicinity of the prohibited cemetery and died at the age of 68 and 43, respectively. 16. On 17 September 2002 the Ivano-Frankivsk Regional Prosecutor ’ s Office informed the applicant that it could not intervene in respect of unauthorised burials taking place on the VL plot: the issue was in the competence of local authorities, including the Yaremche Council, which was responsible for management and maintenance of the cemetery. 17. On 22 April 2003 the Executive Board of Yaremche Council informed the Regional State Administration that Tatariv Council was considering resettling the applicant. He had twice been invited to discuss a proposal for resettlement of his family to another part of the village but no response had been received. 18. On 5 May 2003 the Regional Urban Development and Architecture Department (“the Urban Development Department”) informed Yaremche and Tatariv Councils that the area near the applicant ’ s house was not suitable for construction of the cemetery as it did not respect a 300-metre wide health protection zone that would protect the residential buildings and a 50-metre wide water protection zone to protect the Prutets river. 19. On 18 May 2003 the Tatariv Council resolved inter alia that the relevant local authorities were prepared to consider the purchase of a house or apartment for the applicant, or to pay him compensation if he refused to reside in the cemetery ’ s vicinity. 20. On 21 April 2004 the issue of the site of the cemetery was examined by officials from the Urban Development Department, the Municipal Housing Department, the environmental health inspectorate and the Land Management Department. They recommended to the Chairman of Tatariv Council that another plot on the outskirts of the village of “ Ventarivka ” be used as a cemetery. 21. On 22 June 2005 the Regional State Administration informed the applicant that the only way to resolve the issue was to resettle him. They asked him to agree to such a resettlement. They also confirmed that Yaremche Council was willing either to buy a house for the applicant or to provide him with an equivalent plot of land and the funds necessary to construct another house 22. On 18 July 2005 the Chairman of Yaremche Council invited the applicant to inform the authorities whether his family was willing to resettle and, if so, on what conditions. 23. In reply, the applicant sought more information on the proposal, such as, details of the specific land plot, house and facilities to be provided. 24. By letter of 27 July 2005 the Chairman of Yaremche Council, in reply to the applicant ’ s request for specific proposals, invited the applicant to discuss the proposal in person with a view to a possible compromise. 25. On 15 August 2005 the Chairman of Tatariv Council asked the Ukrainian State Urban Planning Institute ( Дніпромісто – “the Institute”) to develop proposals for the site of a cemetery in the village. 26. On 21 December 2005 the Institute informed the applicant that it was not within its competence to decide matters such as the question of where to situate the cemetery. It also mentioned that the local development plan for Tatariv proposed a plot in the Chertizh area for the cemetery. However, this was subject to approval by the local council and environmental health inspectorate. It also informed the applicant that no letter of 15 August 2005 with proposals to investigate possible site of the cemetery (see paragraph 2 5 above) had been received from Tatariv Council. 27. By letter of 6 March 2006 addressed to the applicant and the Chairman of Tatariv Council, the Urban Development Department stated that it had repeatedly proposed to Tatariv Council that it use an area called Venterivka for the site of the cemetery. However, the council had not taken up that suggestion for unspecified reasons. It also informed the applicant that it was within Tatariv Council ’ s competence to decide on the allocation of a plot of land for a cemetery. 28. On several occasions between August 2006 and June 2008 the applicant and members of his family, who resided together, asked Tatariv Council to grant each of them a plot of land on which to construct a house because they felt that living in the cemetery ’ s vicinity was intolerable. Tatariv Council rejected the requests because of a lack of available plots of land. 29. According to the results of examinations of drinking water from the applicant ’ s well conducted by the Yaremche Environmental Health Inspectorate dated 21 August 2008 and 7 July 2009, the toxicological, chemical and organoleptic indices of the water complied with national standards (no E. coli index examination had been made). A conclusion was reached that water could be used for household needs. 30. On 23 August 2008 and 6 July 2009 the Yaremche Environmental Health Inspectorate carried out a bacteriological analysis of the water from the same well. It established, contrary to the results of the examinations held on 21 August 2008 and 7 July 2009 (see paragraph 29 above) that the E. coli bacteria index in the water gave a reading of 2,380, whereas the normal reading was 10 (see paragraph 7 2 below), and concluded that the water could not be used for household needs. It also recommended disinfecting the water supply. The cause of water pollution was not established and would require an additional expert report. 31. On 14 December 2009 in response to a request from the Government, the Yaremche Environmental Health Inspectorate concluded that the reading obtained from the bacteriological analysis which had indicated water contamination did not have any connection to the location of the cemetery, but could also have been caused by other sources. 32. On 15 December 2009 the Regional Environmental Health Inspectorate informed the applicant that the reasons for the bacterial contamination of the water supply could be established on the basis of a hydrogeological assessment as to whether there were any connections between the drinking water reservoirs and possible sources of contamination. It further stated that according to an analysis of water taken from different parts of the village, the E. coli index exceeded the allowed reading established by law, which provided that drinking water should not contain any index of E. coli or be less than 1 in that index per 100 cm 3 (see paragraph 7 2 in relation to the domestic drinking water standards), nevertheless the E. coli index ranged from 23 to 2,380. 33. The applicant ’ s house and well are some 38 metres from the nearest boundary of the cemetery. 34. By letters of 10, 15 and 16 December 2009 from the Tarariv Council, Yaremche Executive Committee and the Ivano-Frankivsk Regional State Administration, the authorities informed the Government ’ s agent that the applicant had failed to manifest any interest in being resettled. B. Proceedings against Tatariv Council 35. On 10 August 2000 the Verkhovyna Court, following the applicant ’ s claim in proceedings against the Tatariv Council, held that the Council ’ s decision to situate the cemetery on the VL plot had been unlawful. 36. At the end of August 2000 residents of Tatariv carried out the first burial at the cemetery. 37. On 1 December 2000 the Yaremche Court, in another set of new proceedings, found that Tatariv Council had failed to follow the proper procedure for the allocation of a plot of land for a cemetery, namely obtaining an environmental health assessment, and ordered it to prohibit burials on the VL plot. 38. On 24 December 2000 the residents of Tatariv were informed of the court ’ s decision to stop the use of the VL plot as a cemetery. Nevertheless, burials continued at the site. 39. On 29 December 2000 Tatariv Council prohibited burials on the VL plot. On 2 February 2001 the State Bailiffs ’ Service terminated enforcement proceedings in the case, considering that the judgment had been fully complied with by the Tatariv Council. 40. On 2 March 2001 Tatariv Council again decided that the VL plot could be used for the new village cemetery. On 26 March 2001 the applicant lodged a new claim against that decision with the Yaremche Court. 41. In the meantime, on 22 August 2001 the Regional Environmental Health Inspectorate informed the relevant judge of the Yaremche Court, which assumed jurisdiction over the claims lodged on 26 March 2001 (see paragraph 4 0 above), that the site of the cemetery did not comply with national environmental health laws and regulations on the planning and construction of urban areas. In particular, the location did not comply with the requirement of a health protection zone between the cemetery and the nearest residential buildings. 42. On 16 October 2001 the Yaremche Court declared Tatariv Council ’ s decision of 2 March 20 0 1 unlawful. On 17 April 2002 the Supreme Court upheld that judgment. 43. On 25 December 2001 Tatariv Council cancelled its decision of 2 March 2001 in pursuance of the judgment of 16 October 2001. 44. On 3 July 2003 Tatariv Council approved a new development plan for the village. The plan again authorised the use of the VL plot as a cemetery. 45. On 22 July 2003 the applicant again instituted proceedings against Tatariv Council, seeking to have the approval of the new development plan for the village, insofar as it concerned the location of the cemetery, declared unlawful. He also sought compensation for non-pecuniary damage, court fees and legal expenses. 46. On 22 August 2003 the Verkhovyna Court ordered Tatariv Council to inform the residents of the village that burials at the unauthorised cemetery near the applicant ’ s house were prohibited. 47. By that time, up to seventy burials had been carried out on the VL plot. The distance between the applicant ’ s house and some of the graves was less than 120 metres. 48. The Chairman of Tatariv Council argued before the court that there was no other suitable area for a cemetery in the village. She further submitted that the applicant ’ s allegation of possible contamination of the water supply was unfounded, as the groundwater flowed away from his property. 49. On 26 December 2003 the Verkhovyna Court allowed the applicant ’ s claims and held that the new construction plan was unlawful as regards the location of the cemetery. It found that the VL plot was not suitable for use as a cemetery. In particular, constructing the cemetery on the VL plot had breached the environmental health laws and regulations requiring the establishment of: (a) a health protection zone 300 metres wide separating residential areas from a risk factor; and (b) a water protection zone 50 metres wide separating water supply sources from a risk factor. It observed that those distances could not be reduced. It ordered Tatariv Council to close the cemetery and to pay the applicant 25,000 hryvnias (UAH) [1] in compensation for non-pecuniary damage and UAH 609.45 [2] for costs and expenses. 50. On 28 May 2004 the Ivano-Frankivsk Regional Court of Appeal (“Court of Appeal”) upheld the judgment of 26 December 2003 in part. In particular, it decided that no award of non-pecuniary damage should be made to the applicant, and it reduced the award for costs and expenses to UAH 151 [3]. 51. On 9 October 2006 the Supreme Court upheld the ruling of 28 May 2004. C. Enforcement proceedings 52. On 18 June 2004 the Verkhovyna Court issued two writs of execution ordering Tatariv Council to adopt a decision declaring the new development plan unlawful and to close the cemetery. 53. On 7 July 2004 the State Bailiffs ’ Service instituted enforcement proceedings in the case. 54. Between July 2004 and February 2005 the State Bailiffs ’ Service imposed fines on Tatariv Council several times for its refusal to comply with the judgment of 26 December 2003. 55. On 3 March 2005 the Bailiffs terminated the enforcement proceedings, stating that it had been impossible to enforce the decision without the involvement of Tatariv Council, whose members had failed to adopt a decision in pursuance of the judgment of 26 December 2003. 56. In March 2005 the applicant requested the Verkhovyna Court to change the terms of the enforcement of the judgment of 26 December 2003. In particular, he sought to have the Chairman of Tatariv Council ordered to execute the judgment. 57. On 17 October 2005 the Verkhovyna Court rejected the applicant ’ s request. It held that the Chairman had acted only as a representative of Tatariv Council, the respondent in the case. The Chairman had not been involved as a party to the proceedings. On 6 December 2005 the Court of Appeal upheld the ruling of 17 October 2005. 58. In August 2005 the applicant challenged the alleged omissions and inactivity of the Chairman of Tatariv Council as regards the enforcement of the judgment of 26 December 2003 before the Verkhovyna Court. 59. On 8 November 2005 the Verkhovyna Court found no fault on the part of the Chairman and rejected the applicant ’ s claim. On 12 January 2006 the Court of Appeal upheld that decision. 60. On 16 August 2006 Tatariv Council again refused to declare the new development plan unlawful and to close the cemetery. 61. On 28 August 2006 the State Bailiffs ’ Service informed the applicant that the enforcement proceedings were not subject to renewal. 62. The applicant also unsuccessfully sought to institute criminal proceedings against the Chairman of Tatariv Council for her alleged failure to enforce the judgment of 26 December 2003. D. Proceedings against private individuals 63. On 7 May 2002 the Yaremche Court, acting upon the applicant ’ s request, refused to institute criminal proceedings against a private individual, K.M., for using the VL plot for a burial. On 16 July 2002 and 21 January 2003 the Court of Appeal and the Supreme Court, respectively, upheld this decision. 64. On 3 October 2002 the Yaremche Court in two separate judgments rejected as unsubstantiated damages claims brought by the applicant and his neighbour, D.B., against K.M. and F.G. (private individuals) concerning the unlawful use of the land near their houses for burial purposes. It found no breach of applicant ’ s rights by the respondents. 65. The judgments were upheld on 24 December 2002 (in two separate rulings) by the Court of Appeal and subsequently on 15 September 2005 and 15 February 2006 by the Supreme Court. | The applicant alleged that the construction of a cemetery near his house had led to the contamination of his water supply – both for drinking and gardening purposes – leaving his home virtually uninhabitable and his land unusable. He also complained about the disturbance from the burial ceremonies. He further complained about the authorities’ failure to enforce the final and binding judgment declaring the cemetery illegal, submitting that nothing had been done to close the cemetery, discontinue the burials or, despite his requests, offer him a detailed and specific proposal for his resettlement. |
301 | Prevention of terrorism | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants were born in 1977 and 1971 respectively and live in London. A. The searches 7. Between 9 and 12 September 2003 there was a Defence Systems and Equipment International Exhibition (“the arms fair”) at the Excel Centre in Docklands, East London, which was the subject of protests and demonstrations. 8. At about 10.30 a.m. on 9 September 2003 the first applicant was riding a bicycle and carrying a rucksack near the arms fair, on his way to join the demonstration. He was stopped and searched by two police officers who told him he was being searched under section 44 of the Terrorism Act 2000 (“the 2000 Act”: see paragraphs 28-34 below) for articles which could be used in connection with terrorism. He was handed a notice to that effect. The first applicant claimed he was told in response to his question as to why he was being stopped that it was because a lot of protesters were about and the police were concerned that they would cause trouble. Nothing incriminating was found (although computer printouts giving information about the demonstration were seized by the officers) and the first applicant was allowed to go on his way. He was detained for roughly 20 minutes. 9. At about 1.15 p.m. on 9 September 2003, the second applicant, wearing a photographer's jacket, carrying a small bag and holding a camera in her hand, was stopped close to the arms fair. She had apparently emerged from some bushes. The second applicant, a journalist, was in the area to film the protests. She was searched by a police officer from the Metropolitan Police notwithstanding that she showed her press cards to show who she was. She was told to stop filming. The police officer told her that she was using her powers under sections 44 and 45 of the 2000 Act. Nothing incriminating was found and the second applicant was allowed to go on her way. The record of her search showed she was stopped for five minutes but she thought it was more like thirty minutes. She claimed to have felt so intimidated and distressed that she did not feel able to return to the demonstration although it had been her intention to make a documentary or sell footage of it. B. The judicial review proceedings 1. The High Court 10. The applicants sought to challenge the legality of the stop and search powers used against them by way of judicial review. Prior to the High Court hearing, the Secretary of State offered the applicants a procedure which would have enabled the High Court to review in closed session, with the benefit of submissions from a special advocate, the underlying intelligence material which had been the basis for the Secretary of State's decision to confirm the authorisation (section 46 of the 2000 Act: see paragraphs 30-31 below). The applicants, however, indicated that they did not consider it necessary or appropriate to proceed in this way, since they did not intend to challenge the assessment that there was a general threat of terrorism against the United Kingdom. Instead, they contended, first, that the authorisation and confirmation in question, since they formed part of a rolling programme of authorisations covering the entire London area, were ultra vires and unlawful, since there were a number of clear indications that Parliament had intended an authorisation under section 44 of the 2000 Act (“a section 44 authorisation ”) to be given and confirmed only in response to an imminent terrorist threat to a specific location in respect of which normal police powers of stop and search were inadequate. Secondly, the applicants claimed that the use of the section 44 authorisation by police officers to stop and search them at the arms fair was contrary to the legislative purpose and unlawful and that the guidance given to police officers was either non-existent or calculated to cause officers to misuse the powers. Thirdly, the applicants claimed that the section 44 authorisations and the exercise of powers under them constituted a disproportionate interference with their rights under Articles 5, 8, 9, 10 and 11 of the Convention. 11. On 31 October 2003, the Divisional Court dismissed the application ([2003] EWHC 2545). Lord Justice Brooke, giving the judgment of the court, held that Parliament had envisaged that a section 44 authorisation might cover the whole of a police area as a response to a general threat of terrorist activity on a substantial scale and that the authorisation and the subsequent confirmation by the Secretary of State were not ultra vires. Brooke LJ held as follows, in connection with the applicants'second ground of challenge: “The powers conferred on the police under section 44 are powers which most British people would have hoped were completely unnecessary in this country, particularly in time of peace. People have always been free to come and go in this country as they wish unless the police have reasonable cause to stop them. Parliament has, however, judged that the contemporary threats posed by international terrorism and dissident Irish terrorism are such that as a people we should be content that the police should be able to stop and search us at will for articles that might be connected with terrorism. It is elementary that if the police abuse these powers and target them disproportionately against those whom they perceive to be no particular friends of theirs the terrorists will have to that extent won. The right to demonstrate peacefully against an arms fair is just as important as the right to walk or cycle about the streets of London without being stopped by the police unless they have reasonable cause. If the police wish to use this extraordinary power to stop and search without cause they must exercise it in a way that does not give rise to legitimate complaints of arbitrary abuse of power. We are not, however, satisfied that the police's conduct on 9th September entitles either Mr Gillan or Ms Quinton to a public law remedy. There is just enough evidence available to persuade us that, in the absence of any evidence that these powers were being habitually used on occasions which might represent symbolic targets, the arms fair was an occasion which concerned the police sufficiently to persuade them that the use of section 44 powers was needed .... But it was a fairly close call, and the Metropolitan Police would do well to review their training and briefing and the language of the standard forms they use for section 44 stop/searches if they wish to avoid a similar challenge in future. ... ” Finally, the court found that the powers were provided for by law and not disproportionate, given the risk of terrorist attack in London. 2. The Court of Appeal 12. The Court of Appeal gave judgment on 2 9 July 2004 ([2004] EWCA Civ 1067). As to the proper interpretation of the legislation, it held that: “It is clear that Parliament, unusually, has permitted random stopping and searching, but, as we have already indicated when examining the language of the relevant sections, made the use of that power subject to safeguards. The power is only to be used for a single specified purpose for a period of an authorisation granted by a senior officer and confirmed by the Secretary of State. Furthermore, the authorisation only has a limited life unless renewed. We do not find it surprising that the word'expedient'should appear in section 44(3) in conjunction with the power to authorise. The statutory scheme is to leave how the power is to be used to the discretion of the senior officer. In agreement with the Divisional Court, we would give the word its ordinary meaning of advantageous. It is entirely consistent with the framework of the legislation that a power of this sort should be exercised when a senior police officer considers it is advantageous to exercise the power for the prevention of acts of terrorism. Interpreted in this way, sections 44 and 45 could not conflict with the provisions of the Articles of the ECHR. If those Articles were to be infringed it would be because of the manner of the exercise of the power, not its existence. Any possible infringement of the ECHR would depend on the circumstances in which the power that the sections give is exercised.” 13. The Court of Appeal did not consider it necessary to determine whether Article 5 § 1 applied, since it held that any deprivation of liberty was justifiable under Article 5 § 1(b). However it held that, if the point had to be decided, the better view was that there was no deprivation of liberty, taking into account the likely limited nature of any infringement in a normal stop and search and the fact that the main aim would not be to deprive an individual of his liberty but rather to effect a verification of one form or another. Nor did it consider that Articles 10 and 11 applied. Although the applicants'evidence gave some cause for concern that the power had been used against them to control or deter their attendance at the demonstration, those issues had not been tested because the thrust of their argument was directed at the conformity of the legislation with the Convention and, properly used as a measure of limited duration to search for articles connected with terrorism, the stop and search power would not impinge on the rights to freedom of expression or assembly. 14. The respondent Commissioner of the Metropolitan Police had conceded that the stop and search measures amounted to interferences with the applicants'Article 8 rights, and the Court of Appeal accepted that this was the correct approach, describing section 44 as “an extremely wide power to intrude on the privacy of the members of the public”. It considered that the interference was, however, in accordance with the law, for the following reasons: “'The law'that is under criticism here is the statute, not the authorisation. That law is just as much a public record as is any other statute. And the provisions are not arbitrary in any relevant sense. Although the police officer does not have to have grounds for suspecting the presence of suspicious articles before stopping a citizen in any particular case (section 45(1)(b)), he can only be authorised to use those powers for limited purposes, and where a decision has been made that the exercise of the powers is expedient for the serious purpose of the prevention of acts of terrorism (section 44(3)). The system, so controlled, cannot be said to be arbitrary in any sense that deprives it of the status of'law'in the autonomous meaning of that term as understood in Convention jurisprudence. In addition, while the authorisations and their confirmation are not published because not unreasonably it is considered publication could damage the effectiveness of the stop and search powers and as the individual who is stopped has the right to a written statement under section 45(5), in this context the lack of publication does not mean that what occurred was not a procedure prescribed by law. ” Furthermore, given the nature of the terrorist threat against the United Kingdom, the authorisation and confirmation of the power could not, as a matter of general principle, be said to be disproportionate : the disadvantage of the intrusion and restraint imposed on even a large number of individuals by being stopped and searched could not possibly match the advantage that accrued from the possibility of a terrorist attack being thereby foiled or deterred. Having regard to the nature of the arms fair, its location near an airport and a previous site of a terrorist incident (connected with the Northern Ireland problems) and the fact that a protest was taking place, the police were entitled to decide that section 44 powers should be exercised in connection with it. However, the inadequacy of the evidence provided by the police concerning the use of the section 44 power in the vicinity of the arms fair made it impossible to come to any conclusion as regards the lawfulness and proportionality of the use of the power against the applicants. 3. The House of Lords 15. The House of Lords, on 8 March 2006, unanimously dismissed the applicants'appeals ([2006] UKHL 12). Lord Bingham, with whom the other Lords agreed, began by observing: “ 1. It is an old and cherished tradition of our country that everyone should be free to go about their business in the streets of the land, confident that they will not be stopped and searched by the police unless reasonably suspected of having committed a criminal offence. So jealously has this tradition been guarded that it has almost become a constitutional principle. But it is not an absolute rule. There are, and have for some years been, statutory exceptions to it. These appeals concern an exception now found in sections 44 -47 of the Terrorism Act 2000 ('the 2000 Act'). The appellants challenge the use made of these sections and, in the last resort, the sections themselves. Since any departure from the ordinary rule calls for careful scrutiny, their challenge raises issues of general importance. ” 16. The first issue before the House of Lords was as to the proper construction of the statute. The applicants had argued that section 44(3) should be interpreted as permitting an authorisation to be made only if the decision-maker had reasonable grounds for considering that the powers were necessary and suitable, in all the circumstances, for the prevention of terrorism. Lord Bingham rejected this interpretation, since the word “expedient” in the section had a meaning quite distinct from “necessary”. He continued: “ 14. ... But there are other reasons also for rejecting the argument. It is true, as already recognised, that section 45(1)(b), in dispensing with the condition of reasonable suspicion, departs from the normal rule applicable where a constable exercises a power to stop and search. One would therefore incline, within the permissible limits of interpretation, to give'expedient'a meaning no wider than the context requires. But examination of the statutory context shows that the authorisation and exercise of the power are very closely regulated, leaving no room for the inference that Parliament did not mean what it said. There is indeed every indication that Parliament appreciated the significance of the power it was conferring but thought it an appropriate measure to protect the public against the grave risks posed by terrorism, provided the power was subject to effective constraints. The legislation embodies a series of such constraints. First, an authorisation under section 44(1) or (2) may be given only if the person giving it considers (and, it goes without saying, reasonably considers) it expedient'for the prevention of acts of terrorism'. The authorisation must be directed to that overriding objective. Secondly, the authorisation may be given only by a very senior police officer. Thirdly, the authorisation cannot extend beyond the boundary of a police force area, and need not extend so far. Fourthly, the authorisation is limited to a period of 28 days, and need not be for so long. Fifthly, the authorisation must be reported to the Secretary of State forthwith. Sixthly, the authorisation lapses after 48 hours if not confirmed by the Secretary of State. Seventhly, the Secretary of State may abbreviate the term of an authorisation, or cancel it with effect from a specified time. Eighthly, a renewed authorisation is subject to the same confirmation procedure. Ninthly, the powers conferred on a constable by an authorisation under sections 44(1) or (2) may only be exercised to search for articles of a kind which could be used in connection with terrorism. Tenthly, Parliament made provision in section 126 for reports on the working of the Act to be made to it at least once a year, which have in the event been made with commendable thoroughness, fairness and expertise by Lord Carlile of Berriew QC. Lastly, it is clear that any misuse of the power to authorise or confirm or search will expose the authorising officer, the Secretary of State or the constable, as the case may be, to corrective legal action. 15. The principle of legality has no application in this context, since even if these sections are accepted as infringing a fundamental human right, itself a debatable proposition, they do not do so by general words but by provisions of a detailed, specific and unambiguous character. Nor are the appellants assisted by the Home Office circular. This may well represent a cautious official response to the appellants'challenge, and to the urging of Lord Carlile that these powers be sparingly used. But it cannot, even arguably, affect the construction of section 44(3). The effect of that sub-section is that an authorisation may be given if, and only if, the person giving it considers it likely that these stop and search powers will be of significant practical value and utility in seeking to achieve the public end to which these sections are directed, the prevention of acts of terrorism.” 17. Lord Bingham rejected the applicants'contention that the “rolling programme” of authorisations had been ultra vires, as follows: “ 18. The appellants'second, and main, ground of attack was directed to the succession of authorisations which had had effect throughout the Metropolitan Police District since February 2001, continuing until September 2003. It was, they suggested, one thing to authorise the exercise of an exceptional power to counter a particular and specific threat, but quite another to authorise what was, in effect, a continuous ban throughout the London area. Again this is not an unattractive submission. One can imagine that an authorisation renewed month after month might become the product of a routine bureaucratic exercise and not of the informed consideration which sections 44 and 46 clearly require. But all the authorisations and confirmations relevant to these appeals conformed with the statutory limits on duration and area. Renewal was expressly authorised by section 46(7). The authorisations and confirmations complied with the letter of the statute. The evidence of the Assistant Commissioner and Catherine Byrne does not support, and indeed contradicts, the inference of a routine bureaucratic exercise. It may well be that Parliament, legislating before the events of September 2001, did not envisage a continuous succession of authorisations. But it clearly intended that the section 44 powers should be available to be exercised when a terrorist threat was apprehended which such exercise would help to address, and the pattern of renewals which developed up to September 2003 (it is understood the pattern has since changed) was itself a product of Parliament's principled refusal to confer these exceptional stop and search powers on a continuing, countrywide basis. Reporting on the operation of the 2000 Act during the years 2002 and 2003, Lord Carlile ... found that sections 44 and 45 remained necessary and proportional to the continuing and serious risk of terrorism, and regarded London as'a special case, having vulnerable assets and relevant residential pockets in almost every borough'. ” 18. On the question whether either applicant had been deprived of liberty as a result of the stop and search procedure, Lord Bingham commented on the absence of any decision of the European Court of Human Rights on closely analogous facts and accepted that there were some features indicative of a deprivation of liberty, such as the coercive nature of the measure. However, since the procedure would ordinarily be relatively brief and since the person stopped would not be arrested, handcuffed, confined or removed to any different place, such a person should not be regarded “ as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting ”. Article 5 did not, therefore, apply. 19. As to the question whether Article 8 was applicable, Lord Bingham was: “ 28. ... doubtful whether an ordinary superficial search of the person can be said to show a lack of respect for private life. It is true that'private life'has been generously construed to embrace wide rights to personal autonomy. But it is clear Convention jurisprudence that intrusions must reach a certain level of seriousness to engage the operation of the Convention, which is, after all, concerned with human rights and fundamental freedoms, and I incline to the view that an ordinary superficial search of the person and an opening of bags, of the kind to which passengers uncomplainingly submit at airports, for example, can scarcely be said to reach that level. ” 20. Lord Bingham did not consider that the power to stop and search under sections 44-45, properly used in accordance with the statute and Code A, could be used to infringe a person's rights under Articles 10 or 11 of the Convention. 21. Despite his doubts as to the applicability of Articles 5, 8, 10 or 11, Lord Bingham went on to consider whether the stop and search powers complied with the requirement of “lawfulness” under the Convention, as follows: “ 34. The lawfulness requirement in the Convention addresses supremely important features of the rule of law. The exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law. The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than that for which the power was conferred. This is what, in this context, is meant by arbitrariness, which is the antithesis of legality. This is the test which any interference with or derogation from a Convention right must meet if a violation is to be avoided. 35. The stop and search regime under review does in my opinion meet that test. The 2000 Act informs the public that these powers are, if duly authorised and confirmed, available. It defines and limits the powers with considerable precision. Code A, a public document, describes the procedure in detail. The Act and the Code do not require the fact or the details of any authorisation to be publicised in any way, even retrospectively, but I doubt if they are to be regarded as'law'rather than as a procedure for bringing the law into potential effect. In any event, it would stultify a potentially valuable source of public protection to require notice of an authorisation or confirmation to be publicised prospectively. The efficacy of a measure such as this will be gravely weakened if potential offenders are alerted in advance. Anyone stopped and searched must be told, by the constable, all he needs to know. In exercising the power the constable is not free to act arbitrarily, and will be open to civil suit if he does. It is true that he need have no suspicion before stopping and searching a member of the public. This cannot, realistically, be interpreted as a warrant to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting. It is to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion. It is not suggested that the constables in these cases exercised their powers in a discriminatory manner (an impossible contention on the facts), and I prefer to say nothing on the subject of discrimination.” 22. Lord Hope of Craighead agreed with Lord Bingham. In particular, he considered that the stop and search power complied with the principle of legality for the following reasons: “ 48. The sight of police officers equipped with bundles of the stop/search form 5090 which is used to record the fact that a person or vehicle was stopped by virtue of sections 44(1) or 44(2) has become familiar in Central London since the suicide bombings that were perpetrated on 7 July 2005 and the attempts to repeat the attacks two weeks later. They can be seen inside the barriers at stations on the London Underground, watching people as they come through the barriers and occasionally stopping someone who attracts their attention and searching them. Most people who become aware of the police presence are there because they want to use the transport system. The travelling public are reassured by what they see the police doing at the barriers. They are in the front line of those who would be at risk if there were to be another terrorist outrage. But those who are singled out, stopped and searched in this way may well see things differently. They may find the process inconvenient, intrusive and irritating. As it takes place in public, they may well also find it embarrassing. This is likely to be the case if they believe, contrary to the facts, that they are being discriminated against on grounds of race. These features of the process give rise to this question. Are the limits on the use of the power sufficient to answer a challenge that the Convention rights of the person who is searched are being violated because its use is unforeseeable and arbitrary? 49. From that person's perspective the situation is one where all the cards are in the hands of the police. It is they, and not the general public, who know that an authorisation is in force and the area that it relates to. It is they who decide when and where within that area they should exercise the power that has been given to them. It is they who decide which persons or which vehicles should be stopped and searched. Sections 44(1) and 44(2) make it clear that the power may be exercised only by a constable in uniform. Section 45(1)(a) provides that the power may be exercised only for the purpose of searching for articles of a kind which could be used in connection with terrorism. But no criterion is laid down in the statute or in any published document as to the precise state of mind that the constable must be in before the power can be exercised. 50. Section 45(1)(b) provides that the power may be exercised whether or not the constable has grounds for suspecting the presence of articles of a kind which could be used in connection with terrorism. The definition of the word'terrorism'for the purposes of the Act is a wide one, and the matter is left to the judgment of each individual police officer. The first indication that members of the public are likely to get that they are liable to be stopped and searched is when the order to stop is given. Those who are well informed may get some indication as to what is afoot when they see the police with bundles of forms in their hands looking in their direction. But for most people the order to stop will come as a surprise. Unless they are in possession of articles of the kind that the constable is entitled to search for, they may well wonder why they have been singled out for the treatment that they are being subjected to. 51. There is, of course, a strong argument the other way. If the stop and search procedure is to be effective in detecting and preventing those who are planning to perpetrate acts of terrorism it has to be like this. Advertising the time when and the places where this is to be done helps the terrorist. It impedes the work of the security services. Sophisticated methods of disguise and concealment may be used where warnings are given. Those involved in terrorism can be expected to take full advantage of any published information as to when and where the power is likely to be exercised. So the police need to be free to decide when and where the use of the procedure is to be authorised and whom they should stop on the spur of the moment if their actions are to be a step ahead of the terrorist. Must this system be held to be unlawful under Convention law ... on the ground that it is arbitrary? ... 55. ... The use of the section 44 power has to be seen in the context of the legislation that provides for it. The need for its use at any given time and in any given place to be authorised, and for the authorisation to be confirmed within 48 hours, provides a background of law that is readily accessible to the citizen. It provides a system of regulatory control over the exercise of the power which enables the person who is stopped and searched, if he wishes, to test its legality in the courts. In that event the authorisation and the confirmation of it will of necessity, to enable the law to be tested properly, become relevant evidence. The guidance in para 2.25 of Code A warns the constable that the power is to be used only for reasons connected with terrorism, and that particular care must be taken not to discriminate against members of minority ethnic groups when it is being exercised. It is no more precise than that. But it serves as a reminder that there is a structure of law within which the power must be exercised. A constable who acts within these limits is not exercising the section 44 power arbitrarily. 56. As the concluding words of para 67 of the decision in Malone v United Kingdom (1985) 7 EHRR 14 indicate, the sufficiency of these measures must be balanced against the nature and degree of the interference with the citizen's Convention rights which is likely to result from the exercise of the power that has been given to the public authority. The things that a constable can do when exercising the section 44 power are limited by the provisions of section 45(3) and 45(4). He may not require the person to remove any clothing in public except that which is specified, and the person may be detained only for such time as is reasonably required to permit the search to be carried out at or near the place where the person or vehicle has been stopped. The extent of the intrusion is not very great given the obvious importance of the purpose for which it is being resorted to. In my opinion the structure of law within which it is to be exercised is sufficient in all the circumstances to meet the requirement of legality. 57. It should be noted, of course, that the best safeguard against the abuse of the power in practice is likely to be found in the training, supervision and discipline of the constables who are to be entrusted with its exercise. Public confidence in the police and good relations with those who belong to the ethnic minorities are of the highest importance when extraordinary powers of the kind that are under scrutiny in this case are being exercised. The law will provide remedies if the power to stop and search is improperly exercised. But these are remedies of last resort. Prevention of any abuse of the power in the first place, and a tighter control over its use from the top, must be the first priority. ” 23. Lord Brown of Eaton-under-Heywood observed, inter alia: “ 74. Given the exceptional (although, as Lord Bingham has explained, neither unique nor particularly novel) nature of [the section 44] power (often described as the power of random search, requiring for its exercise no reasonable suspicion of wrongdoing), it is unsurprisingly hedged about with a wide variety of restrictions and safeguards. Those most directly relevant to the way in which the power impacts upon the public on the ground are perhaps these. It can be used only by a constable in uniform (section 44 (1) and (2)). It can be used only to search for terrorist-connected articles (section 45(1) (a)). The person searched must not be required to remove any clothing in public except for headgear, footwear, an outer coat, a jacket or gloves (section 45(3)). The search must be carried out at or near the place where the person or vehicle is stopped (section 45(4)). And the person or vehicle stopped can be detained only for such time as is reasonably required to permit such a search (section 45(4)). Unwelcome and inconvenient though most people may be expected to regard such a stop and search procedure, and radically though it departs from our traditional understanding of the limits of police power, it can scarcely be said to constitute any very substantial invasion of our fundamental civil liberties. Nevertheless, given, as the respondents rightly concede, that in certain cases at least such a procedure will be sufficiently intrusive to engage a person's article 8 right to respect for his private life, and given too that this power is clearly open to abuse—the inevitable consequence of its exercise requiring no grounds of suspicion on the police officer's part—the way is clearly open to an argument that the scheme is not properly compliant with the Convention requirement that it be'in accordance with the law.' 75. For this requirement to be satisfied ... not only must the interference with the Convention right to privacy have some basis in domestic law (as here clearly it does in the 2000 Act); not only must that law be adequately accessible to the public (as here clearly it is —unlike, for example, the position in Malone v United Kingdom (1985) 7 EHRR 14); not only must the law be reasonably foreseeable, to enable those affected to regulate their conduct accordingly (a requirement surely here satisfied by the public's recognition, from the very terms of the legislation, that drivers and pedestrians are liable to be subjected to this form of random search and of the need to submit to it); but there must also be sufficient safeguards to avoid the risk of the power being abused or exercised arbitrarily. 76. As I understand the appellants'argument, it is upon this final requirement that it principally focuses: this power, submits Mr Singh, is all too easily capable of being used in an arbitrary fashion and all too difficult to safeguard against such abuse. True, he acknowledges, if the power is in fact abused in any particular case the police officer concerned will be liable to a civil claim for damages (and, no doubt, to police disciplinary action). But, he submits, it will usually be impossible to establish a misuse of the power given that no particular grounds are required for its apparently lawful exercise. Assume, for example, that a police officer in fact exercises this power for racially discriminatory reasons of his own, how could that be established? There are simply no effective safeguards against such abuse, no adequate criteria against which to judge the propriety of its use. Certainly it is provided by paragraph 2.25 of Code A (a published code issued under section 66 of the Police and Criminal Evidence Act 1984) that:'Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers'. But, say the appellants, there is simply no way of policing that instruction with regard to the exercise of so wide a random power. No way, that is, submits [counsel for the applicants], unless it is by stopping and searching literally everyone (as, of course, occurs at airports and on entry to certain other specific buildings) or by stopping and searching on a strictly numerical basis, say every tenth person. Only in one or other of these ways, the appellants'argument forces them to contend, could such a power as this be exercisable consistently with the principle of legal certainty: there cannot otherwise be the necessary safeguards in place to satisfy the Convention requirement as to'the quality of the law'... 77. I would reject this argument. In the first place it would seem to me impossible to exercise the section 44 power effectively in either of the ways suggested. Imagine that following the London Underground bombings last July the police had attempted to stop and search everyone entering an underground station or indeed every tenth (or hundredth) such person. Not only would such a task have been well nigh impossible but it would to my mind thwart the real purpose and value of this power. That, as Lord Bingham puts it in paragraph 35 of his opinion, is not'to stop and search people who are obviously not terrorist suspects, which would be futile and time-wasting [but rather] to ensure that a constable is not deterred from stopping and searching a person whom he does suspect as a potential terrorist by the fear that he could not show reasonable grounds for his suspicion.'It is to be hoped, first, that potential terrorists will be deterred (certainly from carrying the tools of their trade) by knowing of the risk they run of being randomly searched, and, secondly, that by the exercise of this power police officers may on occasion (if only very rarely) find such materials and thereby disrupt or avert a proposed terrorist attack. Neither of these aims will be served by police officers searching those who seem to them least likely to present a risk instead of those they have a hunch may be intent on terrorist action. 78. In his 2001 review of the operation of the Prevention of Terrorism (Temporary Provisions) Act 1989 (amended as explained by Lord Bingham in paragraph 9 of his opinion) and the Northern Ireland (Emergency Provisions) Act 1996, Mr John Rowe QC said this of the power to stop and search those entering or leaving the United Kingdom with a view to finding out whether they were involved in terrorism: ' The “intuitive” stop 37. It is impossible to overstate the value of these stops ... 38. I should explain what I mean by an “intuitive stop”. It is a stop which is made “cold” or “at random”—but I prefer the words “on intuition”—without advance knowledge about the person or vehicle being stopped. 39. I do not think such a stop by a trained Special Branch officer is “cold” or “random”. The officer has experience and training in the features and circumstances of terrorism and terrorist groups, and he or she may therefore notice things which the layman would not, or he or she may simply have a police officer's intuition. Often the reason for such a stop cannot be explained to the layman.' 79. Later in his review Mr Rowe noted of the more general stop and search powers originally contained in sections 13A and 13B of the 1989 Act that'these powers were used sparingly, and for good reason'. I respectfully agree that the section 44 power (as it is now) should be exercised sparingly, a recommendation echoed throughout a series of annual reports on the 2000 Act by Lord Carlile of Berriew QC, the independent reviewer of the terrorist legislation appointed in succession to Mr Rowe—see most recently paragraph 106 of his 2005 report, suggesting that the use of the power'could be cut by at least 50 per cent without significant risk to the public or detriment to policing.'To my mind, however, that makes it all the more important that it is targeted as the police officer's intuition dictates rather than used in the true sense randomly for all the world as if there were some particular merit in stopping and searching people whom the officers regard as constituting no threat whatever. In short, the value of this legislation, just like that allowing people to be stopped and searched at ports, is that it enables police officers to make what Mr Rowe characterised as an intuitive stop. 80. Of course, as the Privy Counsellor Review Committee chaired by Lord Newton of Braintree noted in its December 2003 report on the Anti-Terrorism, Crime and Security Act 2001: ' Sophisticated terrorists change their profile and methods to avoid presenting a static target. For example, al Qaeda is reported to place particular value on recruiting Muslim converts because they judge them to be less likely to be scrutinised by the authorities.' It seems to me inevitable, however, that so long as the principal terrorist risk against which use of the section 44 power has been authorised is that from al Qaeda, a disproportionate number of those stopped and searched will be of Asian appearance (particularly if they happen to be carrying rucksacks or wearing apparently bulky clothing capable of containing terrorist-related items). 81. Is such a conclusion inimical to Convention jurisprudence or, indeed, inconsistent with domestic discrimination law? In my judgment it is not, provided only that police officers exercising this power on the ground pay proper heed to paragraph 2.25 of Code A: ' The selection of persons stopped under section 44 of Terrorism Act 2000 should reflect an objective assessment of the threat posed by the various terrorist groups active in Great Britain. The powers must not be used to stop and search for reasons unconnected with terrorism. Officers must take particular care not to discriminate against members of minority ethnic groups in the exercise of these powers. There may be circumstances, however, where it is appropriate for officers to take account of a person's ethnic origin in selecting persons to be stopped in response to a specific terrorist threat (for example, some international terrorist groups are associated with particular ethnic identities).' Ethnic origin accordingly can and properly should be taken into account in deciding whether and whom to stop and search provided always that the power is used sensitively and the selection is made for reasons connected with the perceived terrorist threat and not on grounds of racial discrimination. ” C. The County Court proceedings 24. The applicants also commenced a claim in the County Court on 8 September 2004 for, inter alia, damages under the Human Rights Act 1998 on the basis that the police had used the stop and search powers unlawfully against each applicant and in breach of Articles 8, 10 and 11 of the Convention, to control or deter their attendance at the demonstration rather than to search for articles linked to terrorism. The claims were stayed pending the outcome of their appeal to the House of Lords and were finally heard in February 2007. The County Court rejected the applicants'claims and determined that the power had, in respect to each of them, been properly and lawfully exercised. The applicants did not seek to appeal against this judgment. | This case concerned the police power in the United Kingdom, under sections 44-47 of the Terrorism Act 2000, to stop and search individuals without reasonable suspicion of wrongdoing. |
447 | Medical assistance for prisoners with a physical illness | I. THE CIRCUMSTANCES OF THE CASE 6. The first applicant was born in 1981 and died on 2 August 2008. The second applicant was born in 1955 and lives in the town of Zuya in Crimea. A. Background information 7. On 30 September 2005 the first applicant tested HIV positive. 8. On 2 February 2006 the Centre for the Prevention and Combating of Aids in Crimea (“the Aids Centre”) informed him of the test results and invited him to register for medical monitoring. The first applicant did not, however, follow the advice (see also paragraphs 21 and 59 below). B. Criminal proceedings against the first applicant and his medical treatment in detention 9. On 20 November 2007 the first applicant was arrested by the police on suspicion of having robbed an acquaintance of a mobile phone. According to the second applicant, on the same day her son informed the investigator about his HIV status and expressed the fear that his health might deteriorate in detention. This information was allegedly ignored. According to the Government, the first applicant did not disclose his HIV status. 10. The first applicant was placed in the Temporary Detention Facility of the Bakhchysaray Police Station (“the ITT”). The officer on duty examined him and reported that he had no visible injuries and had raised no complaints. 11. On 23 November 2007 the Bakhchysaray District Court (“the Bakhchysaray Court”) remanded the first applicant in custody pending trial. 12. On 30 November 2007 the first applicant was X-rayed in the local polyclinic; no lung pathology was revealed. 13. On 2 December 2007 he was taken from the ITT to Simferopol Pre-Trial Detention Centre no. 15 (“the SIZO”), where he was examined by a therapist (general practitioner), a dermatologist, a dentist and a psychiatrist. All found him to be in good health. According to the medical records, the first applicant did not have any health-related complaints and did not report any illnesses. His height and weight were recorded as 180 cm and 78 kg respectively. 14. The first applicant was detained in the SIZO from 2 to 28 December 2007, then subsequently from 10 January to 10 February 2008, and from 18 February to 2 June 2008. During the intervening periods, from 28 December 2007 to 10 January 2008, from 10 to 18 February, and from 2 to 20 June 2008, he was held in the ITT. 15. According to the records of his medical examinations of 10 January and 10 and 18 February 2008, he appeared to be in good health and did not raise any health-related complaints. 16. According to the SIZO medical register, on 28, 29 and 30 May 2008 the first applicant complained of nasal stuffiness, rhinitis, and a sore throat. The SIZO therapist diagnosed him with an “acute respiratory viral infection” and prescribed medication. 17. As to the intervening period between the aforementioned records of 18 February and 28 May 2008, no documents are available in the case file. The applicants submitted, however, that in early March 2008 the first applicant’s health had sharply deteriorated. He allegedly had a constant fever of 39-40ºC and suffered from serious digestive disorders. According to the applicants, the administration of the detention facilities called for an ambulance in that regard on many occasions. The nature of the ambulance interventions remained unclear. 18. On 31 May 2008 the first applicant was additionally examined by an infectious disease specialist at the SIZO, who issued a note stating the following. The first applicant had been complaining of experiencing fevers and losing weight for the preceding two months. The doctor recommended an HIV test, to which the first applicant agreed. The test was scheduled for 2 June 2008. However, it did not take place because of the first applicant’s transfer from the SIZO to the ITT (see paragraph 14 above). 19. On 2 June 2008, following another transfer from the SIZO to the ITT, the first applicant complained to the ITT medical attendant about feeling weak and having fever and back pain. The medical attendant administered some antipyretics to him. 20. On 3 June 2008 the first applicant was taken to the Central Hospital, where he was examined by a therapist and underwent ultrasound scans of his liver, gallbladder, pancreas, spleen and kidneys. The following tests were also carried out: chest X-ray, electrocardiogram, esophagogastroduodenoscopy, as well as general blood and urine analyses. The therapist diagnosed the applicant with an ulcer, gastrointestinal hemorrhage, haemorrhoids, chronic bronchitis, and suspected HIV infection. 21. On 4 June 2008 the Chief Doctor of the Aids Centre informed the second applicant, in reply to her enquiry of 3 June 2008, that her son had tested HIV positive on 30 September 2005, and had been informed of the result on 2 February 2006, but that he was not registered for monitoring in that Centre. 22. On 5 June 2008 the first applicant was again taken to the Central Hospital, this time for examination by an infectious disease specialist. According to a note issued by the doctor, the first applicant complained to him about suffering from stomach aches, mouth lesions, a skin rash, coughing, and shortness of breath. He also complained of having lost about 10 kg during the preceding three months. Having examined the first applicant, the doctor diagnosed him with pneumocystis pneumonia, oropharynx-esophagus candidiosis (thrush) and an ulcer. Moreover, he concluded that the symptoms disclosed HIV infection at the fourth clinical stage. While the doctor assessed the first applicant’s condition as being “moderately severe” and noted that he required medical treatment for the aforementioned conditions, a general conclusion was reached that there was no urgent need for hospitalisation. 23. The first applicant’s mother was informed of the diagnoses. She bought the prescribed medications, and the ITT medical attendant administered them to her son. 24. On 6 June 2008 the first applicant’s lawyer requested the Bakhchysaray Court to release his client on account of his critical state of health. He noted that the first applicant required urgent specialised medical treatment because he had HIV infection at the fourth clinical stage and concomitant oesophagal candidosis and pneumocystis pneumonia. The lawyer stated that the first applicant’s life hung in the balance and that in order to save it he needed to be at liberty so as be able to seek proper medical care. Moreover, the lawyer pointed out, his client had a permanent place of residence and he had neither absconded from the investigation nor hindered it in any way. Furthermore, given his desperate health condition he did not present any danger to society. 25. The Bakhchysaray Court rejected the above-mentioned request (this ruling is not available in the case file before the Court). 26. On 11 June 2008 the Bakhchysaray District Prosecutor’s Office instructed the local police department to take the first applicant to the Central Hospital for another examination with a view to clarifying whether his state of health was compatible with detention. 27. On 13 June 2008 the first applicant was taken to the Central Hospital, where he was again examined by an infectious disease specialist. The doctor reached a preliminary conclusion that the first applicant was suffering from HIV infection at the second clinical stage, which did not necessitate urgent hospitalisation. A further examination in the Aids Centre was recommended with a view to deciding on the necessary medical treatment. The doctor also made arrangements for the first applicant to have laboratory tests, such as blood and urine analyses and a sugar test, and a chest X-ray. 28. On 16 June 2008 the applicants requested the Court to indicate to the Ukrainian Government, under Rule 39 of the Rules of Court, that the first applicant should be hospitalised and treated as a matter of urgency given the serious deterioration of his health and the alleged lack of adequate medical treatment. 29. On 17 June 2008 the President of the Fifth Section decided to grant that request and to indicate to the respondent Government, under Rule 39 of the Rules of Court, that the first applicant “should be transferred immediately to a hospital or other medical institution where he [could] receive the appropriate treatment for his medical condition until further notice.” On the same day (Tuesday, a working day) a fax message was sent to the Government informing them of this decision. 30. On 18 June 2008 the first applicant’s lawyer once again requested the Bakhchysaray Court to release his client. He reiterated that the first applicant’s life was in danger. The lawyer also referred to the aforementioned decision of the Court regarding the application of Rule 39 of the Rules of Court in the first applicant’s case. 31. On the same date, 18 June 2008, following another enquiry by the Bakhchysaray police about the need for the first applicant’s hospitalisation, the Chief Doctor of the Infectious Diseases Department of the Central Hospital stated that the first applicant did not require urgent hospitalisation. 32. As a result, the Bakhchysaray Court rejected the first applicant’s request for release submitted earlier that day. 33. On 18 June 2008 the second applicant complained to the Chief Doctor of the Central Hospital about the alleged failure of its staff to provide her son with adequate medical assistance in spite of the applications she had made in that regard on 4 and 5 June, as well as twice on 13 June 2008. She insisted that his life was in danger. According to the second applicant, her son had never undergone a complete medical examination. She considered that the doctors were avoiding treating him because he was, firstly, HIV-positive and, secondly, a detainee. 34. On 20 June 2008 the first applicant was taken to the Aids Centre, where the following diagnoses, classified as preliminary, were established: HIV infection at the fourth clinical stage, systemic candidosis of the oropharynx and oesophagus, continuous fever with expressed intoxication syndrome, a loss of body weight of more than 15%, and seborrheic dermatitis of the scalp. The doctors at the Aids Centre concluded that he required an additional examination with a view to clarifying the diagnoses, as well as in ‑ patient medical treatment. 35. On the same day, he was transferred to the Central Hospital, where he was placed in a ward under police guard. According to the second applicant, her son was kept continuously handcuffed to his bed. She submitted to the Court his two photos taken on 25 June 2008. They showed the first applicant with his left hand handcuffed to the hospital bed. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which referred to the first applicant’s medical file in the Central Hospital, on 20 June 2008 he arrived there handcuffed. However, it was not recorded in the medical file whether he remained handcuffed throughout his treatment in that hospital. 36. At some point on 20 June 2008 the first applicant wrote an “explanatory note” to the police, according to which he had informed neither the SIZO nor the ITT administration about his HIV infection “for understandable reasons”. After his mother had informed them that he might have that diagnosis, on 5 and 13 June 2008 he had undergone medical examinations in the Central Hospital resulting in the prescription of certain medication. The medical attendant had later administered that medication to him in the ITT. The first applicant stated that he had no complaints about the ITT staff. According to the second applicant, however, her son had written the aforementioned note under duress. 37. On 24 June 2008 the first applicant wrote another note in which he stated that he had started to feel unwell during his detention (the date is illegible on the available copy). He noted that he had sought examination by a therapist on account of his continuous fever, as well as kidney, liver and intestinal pain. The medical attendant had been sent to him instead and had merely given him antipyretics. As he had not got any better, at some point between 22 and 25 May 2008 the medical attendant had begun administering injections of ceftriaxone (an antibiotic) to him. The fever and backache had, however, not ceased. As a result, on 29 May 2008 he had been placed in the SIZO hospital, without any changes to his treatment. Following his transfer to the ITT, on 4 June 2008 he had started to intake some other medicines which had been bought by his mother. 38. On 24 June 2008 the first applicant’s lawyer again requested the release of his client, referring to the seriousness of his condition, as well as to the fact that the prosecutor did not object to his release. 39. On the same date the Bakhchysaray Prosecutor requested the judge dealing with the first applicant’s criminal case to bring forward the hearing scheduled for 3 July 2008 given “the critical condition” of the first applicant and the need for him to undergo treatment in Simferopol Hospital no. 7, which specialised in the treatment of Aids (“Hospital no. 7”). The prosecutor noted the necessity to examine the aforementioned release request promptly. 40. On an unspecified date (possibly 4 July 2008 – see paragraph 47 below) the Bakhchysaray Court rejected the aforementioned request for the first applicant’s release. 41. On 26 June 2008 the Chief Doctor of the Central Hospital responded to the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance. He noted that the available medical records were insufficient for evaluating the development of his disease over time. The requests for medical assistance addressed to the Hospital had been of a contextual nature and assistance had been duly provided. 42. On the same day the first applicant was transferred from the Central Hospital to Hospital no. 7. 43. According to an extract from his medical record while in Hospital no. 7, his diagnoses included those established by the Aids Centre on 20 June 2008 (see paragraph 34 above), plus the following: pneumocystis pneumonia, second-degree anaemia, heavy immunosuppression (the CD4 count [1] being 48 cells/mm 3 ), and encephalitis of unclear origin. Furthermore, toxic hepatitis, hepatolienal syndrome, superficial gastritis, and duodenogastric reflux were indicated as concurrent illnesses. 44. According to the letter of the First Deputy Minister of Public Health to the Government Agent of 23 October 2009 (see also paragraph 67 below), which further referred to information from the management of Hospital no. 7, the first applicant had been handcuffed during his treatment in Hospital no. 7 from 26 June to 18 July 2008. At the same time, it was noted in the aforementioned letter that there was no information as to whether the handcuffing had been constant. 45. On 2 July 2008 the ITT Governor examined the second applicant’s complaint about the alleged failure to provide her son with the required medical assistance and delivered a decision refusing to launch a criminal investigation into the matter. He noted that the first applicant had hidden from the administration the fact that he was HIV-positive. In any event, he had received adequate medical care during his detention in the ITT. 46. On the same day the Chief Doctor of Hospital no. 7 wrote to the Chief of the Bakhchysaray Police Department, stating that the first applicant required lengthy medical treatment, that he needed to be unrestricted in his movements, and that any interruption in his treatment would trigger a sharp deterioration in his health. 47. On 4 July 2008 the Bakhchysaray Court found the first applicant guilty of fraud (instead of the robbery charge advanced by the prosecution – see paragraph 9 above) and sentenced him to a fine of 850 Ukrainian hryvnias (at the time equivalent of 115 euros). It was noted in the judgment that, until it became final the first applicant was to remain in detention. 48. On 10 July 2008 antiretroviral therapy began to be administered to the first applicant in Hospital no. 7. According to the information provided by the Public Health Ministry in its letter to the Government Agent of 23 October 2009, the first applicant had refused – apparently on one occasion – to take the prescribed medication. 49. On the same date, 10 July 2008, the second applicant requested the Chief of the Bakhchysaray Police Department to allow her to visit her son and to take care of him in the hospital given his critical condition. She also complained to the Bakhchysaray Prosecutor about the first applicant’s continuous handcuffing and sought its discontinuation. 50. On 15 July 2008 the Chief of the Bakhchysaray Police replied to the second applicant that her son would in any case soon be released once the judgment of 4 July 2008 became final. 51. On 18 July 2008 the first applicant’s lawyer also sought discontinuation of the handcuffing, noting that it was already clear that his client was about to die; nevertheless, he remained guarded by two police officers in a ward with barred windows, handcuffed to his bed. Such security measures were not only unjustified, but also inhuman. The lawyer further submitted that, as the second applicant had discovered, certain police officers guarding her son had mockingly offered him to install a cable in the ward and to handcuff him to that cable so that his movements would be “practically unrestrained”. C. The first applicant’s medical treatment after his release from detention and his death 52. On 18 July 2008 the police lifted the security measures in respect of the first applicant (apparently on the ground that the judgment of 4 July had become final), and the second applicant took him home. She wrote a note to the administration of Hospital no. 7 stating that she was taking her son home “for family reasons”. 53. On the following day, however, the first applicant was hospitalised again in Hospital no. 7 because of a deterioration in his health. 54. On 1 August 2008 the second applicant took him home again, having written a note to the hospital administration similar to that of 18 July 2008. 55. On 2 August 2008 the first applicant died. D. Investigation into the death of the first applicant 56. Following the death of her son, the second applicant complained to the prosecution authorities about the alleged denial of timely and adequate medical care available for him in detention which, according to her, had led to his death. 57. On 20 January 2009 the Bakhchysaray Prosecutor informed her that the ITT governor’s decision of 2 July 2008 (see paragraph 45 above) had been quashed and the investigation into the medical assistance provided to the first applicant had been resumed. 58. On 17 February 2009 the Ministry of Public Health set up a commission for investigating the matter. 59. On 20 March 2009 the commission issued an official investigation report which concluded that the Central Hospital’s doctors bore no responsibility for the first applicant’s death. It noted that although the Aids Centre had informed him about his HIV-positive status and had explained to him the necessity of medical monitoring as early as on 2 February 2006, the first applicant had not sought any medical examinations or monitoring. As a result, the antiretroviral therapy had not been started in good time, thus complicating the development of the disease. The commission gave its general findings as follows: “1. Medical care to persons in custody is the duty of the police medical staff. 2. Specialists of the Central Hospital do not provide medical consultations or examinations to persons in custody without being called on to do so by the [detention facilities’] personnel. 3. The [first applicant] benefited from examinations, specialist consultations, laboratory tests and treatment in Central Hospital fully and according to the approved standards. 4. The deterioration of [his] health and the complications are attributable to the delay in his application for medical care after testing HIV-positive, as well as the severity of the main disease, which triggered irreversible processes in [his] organism.” 60. On 23 March 2009 the second applicant again complained to the Bakhchysaray Prosecutor. She referred, in particular, to the allegedly unjustified conclusion of the infectious disease specialist of 13 June 2008, according to which her son had not required urgent hospitalisation at that time (see paragraph 27 above). 61. On 31 March 2009 the Bakhchysaray Prosecutor refused to institute criminal proceedings against the police or the Central Hospital’s staff, finding the second applicant’s complaint to be unsubstantiated. 62. On 3 April 2009 the Bakhchysaray Prosecutor quashed the decision of 31 March 2009 as further investigation was required, which was to include the following measures: questioning of the second applicant, the ITT staff, and the Central Hospital doctors concerned. 63. On 4 May 2009 the second applicant was questioned by the prosecutor. She submitted that her son’s health had started to deteriorate drastically in March 2008 and that he had not received prompt and adequate medical treatment. According to her, the administration of the detention facilities had merely called for an ambulance on several occasions. She insisted on the seizure and examination of all the medical documentation regarding her son – from the ITT, the SIZO, the Central Hospital and Hospital no. 7 – with a view to an evaluation of his medical needs and the actual response to them from November 2007. 64. On 25 May 2009 the Bakhchysaray Prosecutor refused to open criminal proceedings against the police or the Central Hospital’s staff, on account of lack of corpus delicti in their actions. He relied, in particular, on the conclusions of the Ministry of Public Health’s commission (see paragraph 59 above), as well as statements by police officers and doctors. 65. On 18 August 2009 the Bakhchysaray Court upheld that decision. It noted that the first applicant had himself raised no complaints against the police or medical staff. Furthermore, it appeared that as soon as the authorities had become aware of his HIV status they had provided him with adequate medical treatment. 66. On 13 October 2009 the Court of Appeal of the Autonomous Republic of Crimea (“the Crimea Court of Appeal”) quashed the ruling of 18 August 2009 and allowed the second applicant’s appeal. It criticised the investigation, in particular, for its failure to give any consideration to the first applicant’s state of health and the medical assistance, if any, provided to him in detention from 20 November 2007 to early June 2008. Furthermore, the appellate court noted that the impugned ruling had been delivered by the first-instance court in the second applicant’s absence and without any proof that she had been duly notified of the hearing. It remitted the case to the Bakhchysaray Court. 67. On 23 October 2009 the First Deputy Minister of Public Health sent a letter to the Government Agent, in reply to the latter’s enquiry following the communication of the application to the Government by the Court (see also paragraphs 35, 44 and 48 above). It contained the following conclusions: “1. The reasons for the deterioration of the [first applicant’s] health and the complications in the development of [his] disease were as follows: the delayed application of [the first applicant] to [the Aids Centre] for specific medical assistance (since 2005), the seriousness of the main disease (Aids), and the irregularities in his antiretroviral treatment (there were refusals [on his part] to take the medication). 2. The death of the [first] applicant is not related to his medical treatment or the conditions in the medical facilities where he was held. It was caused by the gravity of the main disease, which triggered irreversible processes in [his] organism.” 68. On 17 December 2009 the Bakhchysaray Court quashed the decision of 25 May 2009 (see paragraph 64 above) and remitted the case to the Bakhchysaray Prosecutor for additional investigation. 69. On 19 August 2010 the Bakhchysaray Prosecutor ordered a forensic medical examination with a view to responding to the following questions: (1) Did the Central Hospital’s therapist establish correct diagnoses in respect of the first applicant on 3 June 2008 (for details see paragraph 20 above)? (2) Were the diagnoses established by the infectious disease specialist on 5 June 2008 (for details see paragraph 22 above), as well as his conclusion that the first applicant did not require urgent hospitalisation, correct? (3) Given the diagnoses established on 5 June 2008, did the first applicant indeed not require urgent hospitalisation and could be detained in the ITT or the SIZO? (4) Did the Central Hospital’s doctors prescribe correct medical treatment for the first applicant? (5) Did the Central Hospital’s doctors act correctly in ordering the laboratory tests for the first applicant (blood and urine analyses, a sugar test, and chest X-ray) only on 13 June, and not on 3 or 5 June 2008? (6) On 18 June 2008, following a repeated enquiry by the Bakhchysaray police as to the need for the first applicant to be hospitalised, the Chief Doctor of the Infectious Diseases Department of the Central Hospital issued a note stating that the first applicant did not require urgent hospitalisation. Did the doctor assess the seriousness of the first applicant’s condition correctly? Were her conclusions correct? (7) Was it lawful on the part of the medical staff of Hospital no. 7 to discharge the first applicant on 18 July 2008, given that his mother’s request for him to be discharged did not contain any indication that she had been warned about the possible negative consequences? (8) Were the actions of the medical staff in compliance with the legislation? Was there any causal link between the actions of the police and the medical staff and the death of the first applicant? 70. On 26 November 2010 the Crimea Republic Bureau for Forensic Medical Examinations completed its expert report. 71. Referring to the absence of medical documentation regarding the first applicant’s examination on 3 June 2008, it found it “extremely difficult” to answer question (1). 72. As to questions (2) and (3), the experts concluded that the diagnoses established by the infectious disease specialist on 5 June 2008 had not been based on a thorough examination of the first applicant and had not reflected the seriousness of his condition, in particular, the fever and the haemodynamic parameters. The experts concluded that the doctor’s finding that the first applicant’s urgent hospitalisation was not required on 5 June 2008 did not correspond to the diagnoses established. They noted that he had been diagnosed, in particular, with pneumocystis pneumonia, which would alone have warranted his urgent hospitalisation for in-patient medical treatment. The doctor’s prescription of antibacterial and antifungal medication for the first applicant was found to be correct (this was apparently the reply to question (4), which was not specified). 73. In reply to question (5), the experts found that the doctors’ decision of 13 June 2008 on the necessity of further laboratory examinations complied with the applicable medical standards. They noted that such laboratory tests had already been carried out on 4 June 2008 (from the documents in the case file it appears that the correct date was 3 June 2008 – see paragraph 20 above), but had needed to be further verified. 74. The expert commission replied to question (6) that at the time of his examination on 18 June 2008 the first applicant had required urgent hospitalisation and in-patient medical treatment. 75. As regards questions (7) and (8), the experts noted that they were not competent to make a legal assessment of the doctors’ actions. Given the absence of an autopsy report, the commission found it impossible to determine the cause of the death of the first applicant or to establish whether there was a causal link between the time of his hospitalisation for specialised treatment and his death. 76. On 27 December 2010 the Bakhchysaray Prosecutor instituted a criminal investigation into the failure of the Central Hospital’s doctors to comply with their professional obligations. This decision was mainly based on the expert commission’s findings of 26 November 2010. It stated, in particular, as follows: “The prosecutor’s investigation has collected sufficient evidence of inadequate compliance by the medical officials with their professional duties due to negligence. The delayed hospitalisation and, accordingly, the delayed provision of medical assistance to [the first applicant] contributed considerably to the deterioration of his health, which amounted to a grave consequence for him.” There is no information in the case file on any further developments in this investigation or its outcome. 77. On 29 April 2011 the Bakhchysaray Prosecutor delivered a decision refusing to institute criminal proceedings against the staff of the ITT or the SIZO in connection with the medical assistance provided to the first applicant. Referring to the medical records of 20 November and 2 December 2007, 10 January, 10 and 18 February and 28 May 2008, as well as later medical documentation, the prosecutor did not discern anything criminal in the actions of the administration of the detention facilities. 78. On 9 August 2011 the Bakhchysaray Court upheld that decision having dismissed the second applicant’s complaint to that regard. 79. On 22 September 2011 the Crimea Court of Appeal quashed the ruling of the first-instance court and remitted the case back to it for fresh examination. 80. On 16 November 2011 the Bakhchysaray Court again rejected the second applicant’s complaint. 81. On 13 March 2012 it however reconsidered its position, apparently after a repeated complaint from the second applicant. The Bakhchysaray Court quashed the prosecutor’s ruling of 29 April 2011 and remitted the case for additional investigation. It noted that the investigation undertaken only indirectly concerned the ITT personnel and did not concern at all the SIZO administration or medical staff. Moreover, the SIZO personnel whose duty was to respond to the first applicant’s complaints had not even been identified. The Bakhchysaray Court also observed the lack of information in the file as regards any record-keeping of the first applicant’s health-related complaints or showing the absence of such complaints during his detention. 82. The Court has not been made aware of any further developments. | This case concerned the lack of appropriate medical care given to a detainee, who died from AIDS two weeks after he was released from detention. His mother continued the application before the Court on his behalf and introduced her own complaints. The applicants complained in particular about the inadequate medical care during the first applicant’s detention, unjustified delays in his hospitalisation and permanent handcuffing once he was actually hospitalised. They also complained that the State had failed to protect his life. The second applicant further alleged mental suffering on account of the fact that she had had to witness her son dying without adequate medical care while being in totally unjustified detention, subjected to permanent handcuffing and confronted with the indifference and cruelty of the authorities. Lastly, the applicants complained that in June 2008 it had taken the Ukrainian authorities three days to comply with the Court’s indication under Rule 39 (interim measures) of the Rules of Court to immediately transfer the first applicant to hospital for appropriate treatment. |
456 | Monitoring by prison authorities of a prisoner’s medical correspondence | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1955 and is currently in prison in Staffordshire. A. The applicant ’ s brain haemorrhage and initial confidentiality of his medical correspondence 6. On 30 November 2001 the applicant was sentenced by a Crown Court to a total of fourteen years ’ imprisonment for conspiracy to supply Class A drugs and two offences of possession of a Class A drug with intent to supply. 7. On 6 April 2001, while on bail pending trial, the applicant suffered a brain haemorrhage for which he underwent surgery. On 5 July 2002 he underwent further surgery. Following his discharge to prison, he required monitoring and was required to go to hospital every six months for a specialist check-up by a neuro -radiologist. 8. In 2002 the applicant was held in a high - security prison which held Category A (high - risk) prisoners as well as Category B prisoners such as himself. As a result, he fell within the provisions of a general order, Prison Service Order (PSO) 1000, which applied to all prisoners of whatever security category who were being held in a unit which held Category A prisoners (see paragraph 28 below). 9. The applicant wished to correspond confidentially with his external medical specialist to ensure that he would receive the necessary medical treatment and supervision in prison. He expressed his concerns about his medical correspondence with his external medical specialist being read and applied to the prison governor for a direction that such correspondence should be accorded confidentiality. 10. On 18 September 2002 the governor of the prison in which the applicant was being detained agreed to the applicant ’ s request. It was decided that the applicant ’ s medical correspondence would not be read provided that certain conditions were met. All outgoing and incoming mail was to be marked “medical in confidence”. Outgoing correspondence would be checked to ensure that it was being sent to a nominated address and incoming mail was to be marked with a distinctive stamp of the relevant health authority. B. Subsequent monitoring of the applicant ’ s correspondence 11. The prison governor subsequently reconsidered his decision after seeking advice from HM Prison Service Headquarters. On 28 November 2002 the prison governor informed the applicant that he had been advised that it was necessary to examine his medical correspondence for illicit enclosures. All correspondence between the applicant and his external medical specialist would be directed, unopened, to the prison medical officer. The latter would examine the content of the envelope in order to ascertain its medical status and then reseal it. Incoming and outgoing correspondence would then be sent to the applicant and his external medical specialist respectively. 12. The applicant contested the decision to monitor his medical correspondence. He was concerned that his attempts to confirm that he was receiving adequate treatment in hospital might be regarded by the prison medical officer as criticism and that this might inhibit his relationship with his external medical specialist. C. Judicial review proceedings 13. On 4 August 2003 the applicant applied for leave to apply for judicial review of the prison governor ’ s decision of 28 November 2002. On 20 February 2004 the presiding High Court judge, Mr Justice Collins, allowed the applicant ’ s claim for judicial review. 14. The Prison Service had submitted, inter alia, that it would be difficult to make the necessary arrangements to permit medical correspondence to remain confidential. They argued that there were a large number of health bodies with which a prisoner might wish to correspond and that some health bodies might lack franking machines that would enable prisons to identify the authenticity of the sender. 15. Mr Justice Collins concluded that there were exceptional circumstances in the applicant ’ s case. The exceptional circumstances were said to be the life-threatening nature of the applicant ’ s condition and his desire to ensure that his treatment in prison did not affect him adversely. The applicant, understandably, wanted to obtain reassurance from the medical specialist who was involved in treating him and from whom he required continual medical care, in the form of biannual specialist observations. Mr Justice Collins also found that the initial decision of the prison governor to enable the applicant to correspond on a confidential basis with his external medical specialist indicated that it was reasonable to permit such confidential correspondence. The evidence of the Prison Service as to the practical problems involved in making arrangements to enable confidential medical correspondence were not directly material in an exceptional case such as the present one. 16. In the circumstances, and emphasising that this was a case which turned on its own exceptional facts, Mr Justice Collins considered it appropriate to quash the prison governor ’ s decision of 28 November 2002. He granted the applicant a declaration that “the governor of whatever prison the [applicant] resides [in] should make a decision in accordance with the principles made in light of this judgment”. D. The proceedings before the Court of Appeal 17. On 29 October 2004 the Court of Appeal allowed the appeal by the Secretary of State and the prison governor. Lord Justice Sedley gave the judgment of the court. It was noted that there was no dispute that the reading of prisoners ’ correspondence was governed by law, and that it was directed to the prevention of crime and the protection of the rights and freedoms of others. The issue to be decided was whether, in the language of Article 8 § 2 of the Convention, the reading of the applicant ’ s correspondence was proportionate. While the prison governor ’ s initial decision to allow confidentiality to the applicant ’ s medical correspondence with his external medical specialist strongly suggested that its exemption from Chapter 36.21 of PSO 1000 would be a perfectly reasonable course, the onus still remained on the applicant to establish that anything more invasive would constitute a disproportionate interference with his Article 8 rights. 18. The Court of Appeal concluded that although the procedure set out in the prison governor ’ s letter of 28 November 2002 amounted to an interference with the applicant ’ s right to respect for his correspondence, the interference was justified and proportionate under Article 8 § 2 of the Convention. It considered that although it was of course possible to verify the existence, address and qualifications of the applicant ’ s external medical specialist (whose bona fides was not in question), there was no way of ensuring that the latter would not be intimidated or tricked into transmitting illicit messages. While the same was true of, for example, the secretarial staff of members of parliament (MPs ), the importance of unimpeded correspondence with MPs outweighed the risk. By contrast, as regards correspondence with doctors, the prisoner ’ s health was the concern and the immediate responsibility of the Prison Medical Service. Though it may well be the case that allowing the prison medical officer to read the prisoner ’ s correspondence with an outside medical practitioner might lead the former to “encounter criticism of his own performance”, it was inherently unlikely that this would carry the same degree of risk that might attend the reading by a discipline officer of a letter of complaint to the Prisons Ombudsman. Moreover, if it related to the prisoner ’ s well - being it was probable that the prison medical officer ought in any event to know about it. 19. The Court of Appeal concluded that the monitoring of the applicant ’ s medical correspondence was a proportionate interference with his Article 8 rights, although it did not exclude the possibility that in another case it might be disproportionate to refuse confidentiality to medical correspondence in the prison context. The Court of Appeal based its conclusion on the following factors. Firstly, the monitoring of the applicant ’ s medical correspondence answered legitimate and pressing policy objectives which were clearly stated in Chapter 36. 1 of PSO 1000 (see paragraph 28 below). Secondly, short of withdrawing all scrutiny, it considered that there was no less invasive measure available to the prison service. Thirdly, the reading of the applicant ’ s medical correspondence which was limited to the prison medical officer was not in its view excessive. Fourthly, the process by which the measure had been decided upon was not found to be arbitrary. In particular, it had not been the result of the rigid application of a policy. The withdrawal of monitoring had not only been considered but had been implemented until, upon reconsideration, monitoring had been resumed. The interference in question had not denied the essence of the applicant ’ s Article 8 rights as it related to one correspondent only (the external medical specialist) and it confined the interference to a medically qualified reader (the prison medical officer). It was recognised that there was an inescapable risk of abuse, for example, if the applicant ’ s prison life or treatment was made more difficult because of what he was observed to be writing. However, the risk, having been minimised by virtue of confining surveillance to the prison medical officer, was outweighed by the above- mentioned factors. E. Petition to the House of Lords 20. On 18 April 2005 the applicant ’ s petition for leave to appeal was refused by the House of Lords on the ground that the petition did not raise an arguable point of law of general public importance. F. The applicant ’ s current conditions of imprisonment 21. Since 22 May 2007 the applicant has been located in a Category B prison in Staffordshire. | The applicant suffered a brain haemorrhage while on bail. He had two operations before being discharged to prison to serve his sentence. Thereafter, he was required to attend hospital every six months for a specialist check-up. He discovered that his correspondence with the neuro-radiology specialist supervising his hospital treatment had been monitored by a prison medical officer. His complaint to the domestic courts was dismissed. Relying on Article 8 (right to respect for private and family life, and correspondence) of the Convention, the applicant complained that the prison authorities had intercepted and monitored his medical correspondence. |
235 | Right not to be tried or punished twice (Article 4 of Protocol No. 7) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1969 and lives in Lapinlahti. 6. While driving his pickup van on 17 January 2001, the applicant was stopped by the police during a road check. The police discovered a more leniently taxed fuel than diesel oil in the tank of the van. 7. On 26 February 2001 the applicant was fined for petty tax fraud through a summary penal order. The form stated, inter alia : “Misdemeanour, modus operandi: Petty tax fraud (motor vehicle tax misdemeanour). [The applicant] used as fuel in his car fuel more leniently taxed than diesel oil without having paid due additional tax ( lisävero, tilläggsskatt ). Footnote: he had filled the tank himself.” The fine amounted to 720 Finnish marks (FIM, or 121 euros (EUR)). The summary penal order indicated that Chapter 29, Article 3, of the Penal Code ( rikoslaki, strafflagen; Act no. 769/1990) and sections 20 and 33 of the Motor Vehicle Tax Act ( laki moottoriajoneuvoverosta, lagen om skatt på motorfordon; Act no. 722/1966, now repealed) had been applied. As the applicant did not contest the imposition of the fine, it became final on 6 March 2001. 8. In separate proceedings, and having received the applicant’s submission in writing on an unspecified date, on 17 September 2001 the Vehicle Administration ( ajoneuvohallintokeskus, fordonsförvaltningscentralen ) issued the applicant with a fuel fee debit amounting to FIM 90,000 (equivalent to EUR 15,137) on the ground that his pickup van had been run on more leniently taxed fuel than diesel oil without prior notification to the Vehicle Administration or Customs. The decision indicated that sections 2-7 of the Fuel Fee Act ( laki polttoainemaksusta; lagen om bränsleavgift; Act no. 337/1993, now repealed) had been applied. The decision also included instructions on how to appeal against it and how to apply for a reduction of the imposed amount. 9. The applicant lodged both an application for a reduction of the fee and an appeal with a view to having the decision overturned, arguing, inter alia, that the fuel fee should have been claimed at the same time as the summary penal order was issued. As it had not been claimed at that time, it was no longer possible to debit the fuel fee in the light of Article 7 of the Convention. 10. On 10 October 2001 the National Board of Taxes ( verohallitus, skattestyrelsen ) rejected the application for a reduction of the fee. It reasoned: “No special reasons provided for by law to grant a reduction have been put forward.” 11. The decision indicated that section 15 of the Fuel Fee Act had been applied. No appeal lay. 12. On 28 August 2002 the Helsinki Administrative Court ( hallinto-oikeus, förvaltningsdomstolen ), having received the observations of the Tax Ombudsman ( veroasiamies, skatteombudet ) and the Vehicle Administration and the applicant’s observations in reply, rejected the appeal. It reasoned: “Section 4 of the Fuel Fee Act provides that a fuel fee ( polttoainemaksu, bränsleavgift ) is collected for the number of days the vehicle has been continuously located in Finland prior to the noted use, but not for more than 20 days at a time. Section 5 provides that the fuel fee for a pickup van is FIM 1,500 [some EUR 252] per diem. Section 6 provides that if the use of more leniently taxed fuel than diesel oil is discovered in a vehicle in respect of which no prior notice has been given, the fuel fee collected is treble the [normal] amount. The pickup van owned by Pertti Jukka Tapio Ruotsalainen, [registration no.] KJM-327, has been noted to have been used during the year 2001 using fuel more leniently taxed than diesel oil. Ruotsalainen had not informed the Vehicle Administration or the Customs thereof [in advance]. In the pre-trial investigation and in his writ of appeal he has conceded that he has used incorrect fuel in his vehicle. The imposition of a fuel fee in an administrative procedure concerns the imposition of a fee comparable to a tax. What is in issue is not the imposition of a criminal punishment or a sanction in lieu. The imposition of a fuel fee ... is not in breach of the Constitution of Finland or the Convention. Despite the reasons for the use submitted by Ruotsalainen and despite his financial status, the Vehicle Administration was entitled to impose a fuel fee. The fuel fee amounts to FIM 1,500 per diem, it was to be imposed in respect of 20 days and it was to be trebled. The fuel fee FIM 90,000 has been imposed in accordance with the law. There is no reason to amend the debiting decision.” 13. The decision indicated that sections 1, 3, 7 and 15 of the Fuel Fee Act and Article 7 of the Convention and Article 1 of Protocol No. 1 to the Convention had been applied. 14. The applicant requested leave to appeal, alleging a breach of Article 4 of Protocol No. 7. 15. On 26 February 2003 the Supreme Administrative Court ( korkein hallinto-oikeus, högsta förvaltningsdomstolen ) refused leave to appeal. | The applicant was running his van on fuel that was more leniently taxed than the diesel oil he should have been using, without paying the extra tax. He was fined the equivalent of about 120 euros for petty tax fraud, through a summary penal order. In subsequent administrative proceedings he was ordered to pay about 15,000 euros, corresponding to the difference between the tax he actually paid and the tax he should have paid, multiplied by three because he had failed to inform the competent authorities. He appealed against that decision, but to no avail. The applicant complained that he had been punished twice for the same motor vehicle fuel tax offence. |
1,051 | Work during detention | I. THE PARTICULAR CIRCUMSTANCES OF THE CASE 9. The applicant is a Belgian national, born in 1940. He has no fixed occupation. On 29 July 1970, the Bruges criminal court (tribunal correctionnel ) sentenced him to two years ’ imprisonment for theft, and attempted theft, committed with the aid of skeleton keys. The court also ordered that he be "placed at the Government ’ s disposal" for ten years, pursuant to section 23 of the "Social Protection" Act of 1 July 1964 (see paragraph 19 below): it noted that Mr. Van Droogenbroeck was a recidivist (Article 56 of the Criminal Code) who had been sentenced by the Brussels criminal court on 9 April 1968 to two years ’ imprisonment for aggravated theft and who manifested a persistent tendency to crime. The applicant and the ministère public (public prosecuter ’ s department) appealed to the Ghent Court of Appeal, which confirmed the first instance decision on 20 October 1970. It found that the placing at the Government ’ s disposal was justified by the danger to which society and Mr. Van Droogenbroeck himself would be exposed were he to be released on completion of his sentence (door het gevaar dat, na afloop van de straf die tegen hem uitgesproken wordt, de invrijheidstelling van de veroordeelde voor de maatschappij en voor hem zelf zou doen lopen). An appeal by the applicant on a point of law was dismissed by the Court of Cassation on 19 January 1971. 10. On the completion (on 18 June 1972 ) of his principal sentence, which he served at St. Giles prison, Brussels, and then at Malines, Mr. Van Droogenbroeck did not remain in detention. It was true, according to the medical officer specialised in psychology ( médecin-anthropologue ) at Malines prison, that he was incapable of self-criticism and had no sense of responsibility (noch auto-kritiek, noch verantwoordelijkszin). Nevertheless, the Minister of Justice, acting on the advice of the prison governor and following a "policy of securing as far as possible the rehabilitation of released prisoners", agreed to attempt to reintegrate him into society by placing him, as from 1 August 1972, in semi-custodial care; this involved his working as an apprentice in a central-heating installation firm in Brussels and attending intensive vocational training courses in a specialised institution on Fridays and Saturdays. 11. The applicant disappeared, however, on 8 August 1972. Three days later, on the instructions of the procureur général (public prosecuter) attached to the Ghent Court of Appeal, he was placed on the wanted list and, on 3 October 1972, he was arrested, pursuant to a warrant issued by an investigating judge in connection with an attempt to commit aggravated theft, and detained at Forest prison, Brussels. On 17 November, he was found not guilty by the Brussels criminal court, but on 27 November the Minister of Justice decided to send him to Merksplas prison, in the block reserved for recidivists placed at the Government ’ s disposal (te doen overbrengen naar de afdeling voor TBR - geinterneerde recidivisten te Merksplas); this was because the Ministry ’ s individual Cases Department had expressed the opinion, on 27 November, that the applicant had abused the opportunity offered to him, that he was totally untrustworthy and that a further period of detention was indicated (dat (hij) werkelijk misbruik heeft gemaakt van de hem geboden kans, dat hij helemaal niet is te betrouwen en dat een nieuwe interneringsperiode gewittigd is). On the strength of a favourable opinion from the Recidivists Board (see paragraph 22 below), before which Mr. Van Droogenbroeck had appeared on 13 June 1973, the Minister of Justice decided on 22 June to release him conditionally on 25 July, since the firm mentioned above was prepared to re-engage him as a trainee heating technician. 12. The applicant disappeared again at the beginning of September 1973. He was arrested on 6 November and brought before the Antwerp criminal court on a charge of aggravated theft, where he was sentenced on 16 January 1974 to three months ’ imprisonment. On 4 February, on the expiration of this sentence, he was released as the Minister had agreed to make a further attempt at his reintegration into society, but at the end of March the agency responsible for monitoring his rehabilitation lost trace of him. He was arrested on 21 May 1974 and, until 16 January 1975, served a sentence of eight months ’ imprisonment for aggravated theft, imposed by the Brussels criminal court on 9 August 1974; thereafter he returned to Merksplas prison pursuant to a detention decision (te interneren) taken by the Minister of Justice on 11 January. He left prison on 11 July 1975: two days previously and on the recommendation of the Recidivists Board, the Minister had agreed to his conditional release (te ontslaan), in the form of one month ’ s renewable leave, with a view to rehabilitation in France. 13. Mr. Van Droogenbroeck accordingly went to France, accompanied by a member of the Prisoners ’ Aid committee, but the rehabilitation plan proved impracticable and he therefore returned to Belgium. After different setbacks in hostels, he was obliged to live alone in Brussels, without work and completely without resources. On 10 September 1975, the Individual Cases Department, citing the risk of recidivism, proposed that "steps be taken to detain" the applicant at Merksplas; the Minister of Justice gave his consent on the following day. Thereupon, Mr. Van Droogenbroeck disappeared for the third time; the authorities placed him on the wanted list, on account of his conduct. After hiding for some months in the Netherlands and finding himself in dire financial straits, he gave himself up on 21 January 1976 to the police attached to the parquet du procureur du Roi (public prosecuter ’ s office) in Brussels. He was detained at once in Forest prison before being sent back to Merksplas. On 2 February, as he was unwilling to do the work offered to him, he was placed in the cell block rather than in the recidivists block. On 3 March 1976, the applicant appeared at his request before the Recidivists Board, which decided to re-examine his case in September. At its meeting on 8 September, the Board found that he had saved nothing during his detention and that he had no prospects of finding work outside prison. It therefore declined to recommend his release unless and until he had saved 12,000 BF through his prison work. On 23 September, the applicant was transferred from Merksplas to Louvain prison. 14. On 12 May 1976, Mr. Van Droogenbroeck, relying on section 26 of the Act of 1 July 1964 (see paragraph 23 below), had filed with the procureur général attached to the Ghent Court of Appeal an application for release from the effects of the decision placing him at the Government ’ s disposal. The Court of Appeal refused the application on 13 December: after rejecting the arguments which he had based on Articles 4 par. 1, 4 par. 2, 5 par. 1 and 5 par. 4 of the Convention (art. 4-1, art. 4-2, art. 5-1, art. 5-4), the Court found that each time the applicant had been released, he had yielded to impulse and committed further offences; it concluded from this that he remained asocial (zodat hij asociaal blijft). On 15 February 1977, his appeal on a point of law was held by the Court of Cassation to be inadmissible on the ground that he was no longer entitled to contest before that Court - as he had attempted to do by pleading the Convention - the validity of the decision complained of, that decision having been final since 19 January 1971. 15. On 13 March 1977, the applicant lodged with the Louvain procureur du Roi a complaint of arbitrary detention and, in the alternative, of abuse of authority ( abus de pouvoir ). He pointed out that since 28 February the balance on his account had been more than 12,000 BF; in addition, he alleged that the Recidivists Board, not being mentioned in the Act of 1 July 1964, was "unlawful" and he accused the Minister of transforming his sentence into one of "forced labour". On 19 August 1977, the complaint was set aside as requiring no further action. 16. On 4 May 1977, Mr. Van Droogenbroeck appeared again before the above-mentioned Board. Noting that he had by then saved 12,868 BF and had been detained for long enough (lang genoeg), the Board recommended, "without much enthusiasm" (zonder veel enthousiasme), that he be released (te ontslaan). Accordingly, on 1 June 1977, the Minister of Justice granted him one month ’ s renewable leave, to be preceded by a two month period of semi-custodial care during which he was to be accommodated at night in St. Giles prison (Brussels) but was to work outside the prison during the daytime. However, he disappeared on the day after his first day out and was at once placed on the wanted list for return to the recidivists block at Merksplas. 17. On 22 September 1977, Mr. Van Droogenbroeck was caught in the act of stealing in Bruges and arrested. On 9 December, he was sentenced to three month ’ s imprisonment by the Bruges criminal court and, on completing that sentence on 21 December, was sent back to Merksplas. The Ministry of Justice had found, on 19 December, that the applicant ’ s return to detention did not require a fresh Ministrial decision since he had evaded detention on 8 June 1977 (aangezien betrokkene zich op 8. 6. 77 heeft onttrokken aan zijn internering, is geen ministeriële beslissing nodig om hem opnieuw te interneren). The case was re-examined by the Recidivists Board on 3 May 1978, but the matter was adjourned until September. On 13 September, the Board pointed out that, on account of his systematic refusal to work, Mr. Van Droogenbroeck had saved only 2,437 BF and it therefore proposed that he not be granted renewable leave until he had saved 12,000 BF. On 3 October, the Minister gave instructions to that effect; he also stipulated that the applicant ’ s release should be subject to a series of condition similar to those previously laid down by the Minister, namely submitting to the "guidance" of the Brussels Social Rehabilitation Office, working regularly, not changing employer or address without that Office ’ s consent, refraining from excessive consumption of alcohol and not associating with former criminals. It proved impossible to implement this decision, since Mr. Van Droogenbroeck failed to satisfy any of the conditions attached thereto. On 14 March 1979, he appeared once more before the Recidivists Board, which confirmed the advice it had tendered on 13 September 1978. 18. On 16 September 1979, the applicant lodged with the procureur général attached to the Ghent Court of Appeal a second application based on section 26 of the Act of 1 July 1964 (see paragraph 23 below). This application was granted on 18 March 1980: after considering the submissions to the contrary on the part of the ministère public and although the Court rejected, as in 1976, the arguments based on the Convention, it held that there were by then reasons for releasing Mr. Van Droogenbroeck from the effects of the decision placing him at the Government ’ s disposal. He was set free on the same day, but shortly afterwards was again deprived of his liberty, the Brussels criminal court and the Ghent Court of Appeal having sentenced him on 10 September 1980 and 3 June 1981 to one month ’ s and to one year ’ s imprisonment for aggravated theft, though without applying to him the Social Protection Act. II. THE LEGISLATION IN ISSUE A. The placing of recidivists and habitual offenders at the Government ’ s disposal 19. The placing of recidivists and habitual offenders at the Government ’ s disposal was substituted for the placing under special police supervision that had been provided for in the Criminal Code of 8 June 1867; it was introduced by section 24 to 28 of the "Social Protection" Act of 9 April 1930 and is today the subject of sections 22 to 26 (Chapter VII) of the Social Protection in respect of Mental Defectives and Habitual Offenders Act of 1 July 1964 ("the 1964 Act"). According to Belgian case-law, being placed at the Government ’ s disposal is to be classified as a penalty and not as a security measure; this has various consequences in law (Court of Cassation, 4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 11 December 1933, ibid. 1934, I, p. 96). Under sections 22 and 23 of the 1964 Act, the placing at the Government ’ s disposal is added on to a principal penalty involving deprivation of liberty imposed at the same time, becomes operative on the expiration of that penalty and applies for a period fixed by the Act, namely twenty years, ten years, or from five to ten years, according to the nature of the case. A person who has committed one indictable offence (crime) after another must be placed at the Government ’ s disposal (section 22), whereas in other cases - such as the applicant ’ s - it is a matter for the court ’ s discretion (section 23): the latter rule applies where a non-indictable offence ( délit ) has followed an indictable or a non-indictable offence (Articles 56 and 57 of the Criminal Code), where an indictable offence has followed a non-indictable offence and to the case of "anyone who, having committed in the previous fifteen years at least three offences each involving a penalty of imprisonment for a non-indictable offence ( emprisonnement correctionnel ) of at least six months, is shown to manifest a persistent tendency to crime". In the latter cases, "particulars of the proceedings in respect of the offences which cause the individual concerned to be classified as a recidivist have to be included in the current prosecution file" and the court concerned must give "specific and precise" reasons for ordering the penalty in question (section 24 and Court of Cassation, 3 January 1962, Pasicrisie 1962, I, pp. 525-526). 20. If a recidivist is sentenced to a further principal penalty of imprisonment, the effects of any prior order placing him at the Government ’ s disposal are suspended until that sentence has been served. Such was the result, in the present case, of the judgments of 16 January 1974, 9 August 1974 and 9 December 1977 (see paragraphs 12 and 17 above). The new sentence of imprisonment may itself be accompanied by a further order placing the individual concerned at the Government ’ s disposal, the latter penalty to be served after the expiry of the first order, but as regards Mr. Van Droogenbroeck this course was not followed by the Antwerp, Brussels and Bruges criminal courts or the Ghent Court of Appeal in 1974, 1977, 1980 and 1981 (see paragraphs 12, 17 and 18 above). 21. According to the Court of Cassation, the penalty of being placed at the Government ’ s disposal - which can be the subject of a full appeal or of an appeal to the Court of Cassation on a point of law - and the principal penalty form an "inseparable whole" and the former penalty, like the latter, constitutes a deprivation of liberty (4 April 1978, Pasicrisie 1978, I, pp. 858-862; 17 June 1975, ibid. 1975, I, pp. 998-999; 3 January 1962, ibid. 1962, I, pp. 525-526; 22 July 1955, ibid. 1955, I, pp. 1270-1271, 19 September 1939, ibid. 1939, I, p. 384; 11 December 1933, ibid. 1934, I, p. 96). Under section 25 of the 1964 Act, "recidivists and habitual offenders who are at the Government ’ s disposal shall, if necessary, be detained in an establishment specified by Royal Decree" - in the instant case the establishment being Merksplas, which had been designated for males not suffering from any mental illness (Royal Decree of 8 February 1952). As is indicated by the phrase "if necessary", the Act confers on the Government - here, the Minister of Justice - a wide measure of discretion in deciding how the penalty shall be implemented, the choice lying between detention, semi-custodial care, and remaining at liberty under supervision or on probation. The Minister may conditionally release the person concerned either at the end of the principal sentence - failing which he will be detained - or during the course of detention; he may also revoke conditional release at a later date. The Minister of Justice takes various decisions in accordance with a procedure which is laid down, in part, by Ministrial Decrees. Conditional release usually occurs: - whilst the principal penalty is being served, on a report from the "medical officer specialised in psychology" and the governor of the establishment where the convicted person is held (see paragraph 10 above); - during detention, on a recommendation by the Recidivists Board (see paragraph 11, 12 and 16 above and paragraph 22 below). A decision to revoke conditional release (see paragraph 11, 12, 13 and 17 above) is generally taken by the Minister in the light of a report from the officer responsible for the "guidance" of the person concerned, or of an recommendation by the procureur général attached to the Court of Appeal within whose district the placing at the Government ’ s disposal was ordered. These reports and recommendations will cover the manner in which the person in question is observing the prescribed conditions, his means of subsistence, his work, his conduct and the risk of recidivism on his part. If, however, he is in the process of serving a further sentence of imprisonment, revocation is normally based on reports from the "medical officer specialised in psychology" and the governor of the establishment; these reports will contain information on the nature of the offences for which the sentence was imposed, the offender ’ s criminal record, his personality, his moral character, his family and occupational situation and his future prospects. 22. The Board for Recidivists who have been placed at the Government ’ s Disposal and are in Detention ("the Recidivists Board") was established by a Ministerial Decree of 12 March 1946 which was modified and supplemented on 20 May 1949 and 11 March 1968. The Board is composed of a judge or retired judge, who acts as chairman, the medical director or retired medical director of the Prison Psychological Service (Service d ’ anthropologie ) and a senior official of the Prison Social Service. A representative of the Ministry of Justice attends meeting of the Board and the Prisoners ’ Aid Committees or the Social Rehabilitation Offices may be invited to send a representative - who is entitled to speak and vote (Decree of 20 May 1949) - to those meetings at which the Board is to discuss the position of detainees who have been or are to be placed under their supervision. The Board is convened by its chairman at least once every two months. It is required to supply the Minister of Justice with an opinion - which is not binding - "on the advisability of releasing recidivists and habitual offenders who are in detention ... and on the conditions" which should be attached to their release. Offenders may apply to appear before the Board either at the meeting before the expiry of the first six months of their detention, if it began as soon as they has finished serving their principal sentence, or at the first meeting held after their return to detention, in cases where the Minister has revoked a decision granting conditional release (see paragraph 13 above). They will be heard again at the meeting before the expiry of the first six months of their detention, if it six months, fixed by the Recidivists Board (see paragraph 11, 12, 13, 16 and 17 above). Although the texts are silent on the point, a detainee will be heard without the assistance of a lawyer and without being able to inspect the prison file which contains, inter alia, the results of the social enquiry. The Board ’ s Secretary will communicate to him at once the opinion adopted by the Board at the end of its discussions. If the opinion is favourable, the matter will be referred to the Minister for decision. The Minister may also give directions for release at any time, without consulting the Board in advance. The governors of the establishments involved inform the persons concerned of Ministerial decisions that they be released. Such decisions will be subject to conditions which will be recorded in a booklet and will always include an obligation to submit to supervision arranged by the Social Rehabilitation Offices or the Prison Social Service. 23. Under section 26 of the 1964 Act, individuals placed at the Government ’ s disposal pursuant to sections 22 and 23 may apply to the procureur général attached to the Court of Appeal within whose district the decision was rendered to be released "from the effects of the decision". If, as in the present case, the offender has been placed at the Government ’ s disposal for not more than ten years, such an application "can be made three years after completion of the [principal] sentence" (see paragraph 14 above) and, thereafter, "every three years" (see paragraph 18 above); these periods are increased to five years "in the other cases". The procureur général "shall make such enquiries as he sees fit, add the results to the case-file and lay it, with his submissions, before a criminal chamber of the Court of Appeal; the Chamber shall give a reasoned judgment after hearing the person concerned, who shall have the assistance of a lawyer". 24. The practice followed in implementing the Acts of 1930 and 1964 has developed considerably over the years. Initially, offenders were not released until after a period of detention which varied according to the categories in which they ware placed. Today, on the other hand, where it is the first time that the measure has been ordered and the individual is not very dangerous, the authorities ’ general rule is to release him on trial once the principal sentence has been served, subject to detaining him if he commits another offence or fails to observe one of the prescribed conditions and is out of work and without means of subsistence. Moreover, detention for a long period is now exceptional: according to the Government, the offender will in practice be conditionally released - unless there is a serious danger to society - as soon as there is a real possibility of rehabilitation. 25. According to Articles 62 and 63 of the General Prison Rules (Royal Decree of 21 May 1965), read in conjunction with Article 95, persons sentenced to a penalty for a non-indictable offence ( peine correctionnelle ) and then detained pursuant to section 25 of the 1964 Act, as was Mr. Van Droogenbroeck, may be required to do prison work. B. Existence of remedies in respect of allegedly unlawful deprivation of liberty 26. The Government maintained that several remedies were available to the applicant: (i) instituting or causing to be instituted a prosecution for arbitrary detention; (ii) referring to the Ghent Court of Appeal any dispute between himself and the ministère public regarding the execution of the judgment of 20 October 1970; (iii) applying to that Court of Appeal for release from the effects of the measure imposed on him; (iv) applying to the President of the court of first instance in his capacity of juge des référés (judge hearing urgent applications); (v) bringing an action based directly on Article 5 par. 4 (art. 5-4) of the Convention. On the third point, the Court refers to paragraphs 14, 18 and 23 above, and, on the fifth, to paragraph 55 below. 27. As regards the first point, anyone who maintains that he has been unlawfully deprived of his liberty, either by a private individual or by a public official, is entitled under Belgian law either to file a complaint, with or without the joinder of a claim for damages (constitution de partie civile ), or to bring the matter before a criminal court by means of a direct summons (Articles 147 and 434 to 436 of the Criminal Code; Articles 63, 182 and 609 of the Code of Criminal Procedure; see paragraph 15 above). 28. As regards the second point, the Ghent Court of Appeal held, in 1897 and 1914 that disputes between the ministère public and a convicted person regarding the execution of a sentence could be referred to the court which passed it, but these are isolated decisions which have not been confirmed by other judgments. 29. As regards the fourth remedy mentioned above, the Court confines itself for the moment to noting that under Articles 584 and 1039 of the 1967 Judicial Code it falls to the President of the court of first instance to give a ruling, in the capacity of juge des référés - that is to say, on a "provisional" basis, if the matter is urgent, and without prejudice to the "merits" -, if so requested by anyone claiming to be the victim of, for example, an administrative act constituting a" voie de fait" (manifest illegality). This remedy is available "in all matters, except those which are excluded by law from the competence of the courts". The case-law cited by the Government in this connection is analysed at paragraph 54 below. | The applicant was convicted for theft and ordered to be placed, on completion of his two-year prison sentence, at the disposal of the state for a number of years, during which time he could be recalled for detention. He complained that he was held in servitude given that he was subjected "to the whims of the administration" and that he was forced to work to save some money. |
903 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant company, Axel Springer SE, is a publishing house operated in the legal form of a Societas Europea registered in Berlin. The second applicant company, RTL Television GmbH, is a broadcasting company set up as a private limited company registered in Cologne. 6. On 14 June 2010 the defendant, S ., then aged 2 8, was arrested. The public prosecutor ’ s office charged him with killing his parents, dismembering their bodies, burning some of the parts, flushing others down the toilet and disposing of the rest by putting them in barrels. S. confessed to the police. Several German newspapers reported on the case. Some published pictures of S., which mostly showed him at a much younger age. 7. The public prosecutor ’ s office obtained a psychiatric expert opinion in October 2010. The expert concluded that S. was suffering from a schizoid personality disorder at the time when he had committed the offence. 8. The trial against S. began on 11 January 2011 at the Potsdam Regional Court. Photographers working for the applicant companies attended the hearings to take still photographs and make video ‑ recordings of the defendant. 9. Prior to the start of the hearing, the presiding judge informed the photojournalists orally that the defendant ’ s face would have to be made unidentifiable “in the usual manner” before any images of him were published. 10. According to the applicant companies, the presiding judge had indicated at the beginning of the hearing on 11 January 2011 that anyone who failed to comply with this order no longer needed to show himself at the Regional Court of Potsdam and apply for permission to take photos of future proceedings. The applicant companies submitted a copy of an email of a journalist who attended the hearing confirming the alleged statement of the presiding judge. 11. The Government contested the applicant companies ’ assertions that the presiding judge had threatened not only to bar journalists from taking photographs during the proceedings against the defendant, but also from future proceedings before the Potsdam Regional Court. The Government submitted that according to the presiding judge no such statement had been made. 12. S. repeated his confession on the first day of the hearing. 13. By a letter of 12 January 2011 the second applicant company asked the President of the Regional Court to change the presiding judge ’ s oral order. It pointed out, inter alia, that several unpixelated pictures of S. had been published in different newspapers before. By a letter of the same date the president replied that he had forwarded the letter to the presiding judge for lack of competence. 14. On 17 January 2011 the presiding judge supplemented his order and provided his reasons in writing. The only media representatives who were permitted to take photographs and make video -recordings of S. were those who had previously registered with the court and given an assurance that prior to the publication or forwarding of the material, the face of S. would be disguised by a technical process, for example by pixelisation, so that it would only be possible to use the images in such a form. Journalists were barred from further reporting on the case if they failed to comply with the order. 15. The presiding judge stated in his reasons that he had to balance the public interest in being informed and the personality rights of S. He acknowledged that the crime at issue was very different from “usual crimes” and that permitting only pictures that disguised S. impaired the public ’ s ability to be informed. However, he held that the order was justified in view of the need to protect the personality rights of S. He reasoned that it was unlikely that the case had caused a sensation throughout Germany. No nationwide television channel besides the second applicant had shown any interest in reporting on it. He stressed the importance of the presumption of innocence, finding that reporting on S. in a way which identified him could have a “ pillory effect ”. Consequently, according to the presiding judge the personality rights of S., who had never been in the public eye or sought to contact the media and who had expressly requested that his identity be concealed, outweighed the public interest in being informed. Furthermore, the order had already proved to be necessary as there had been individual violations of the judge ’ s instructions following the first day of the hearing. 16. On 18 January 2011 the presiding judge sent the supplemented written order to a number of journalists, including some who worked for the applicant companies. 17. On 31 January 2011 the applicant companies filed an objection ( Gegenvorstellung ), requesting the suspension of the judicial order banning the publication of images enabling identification “during the proceedings against (...) S.” (” für die Dauer des Prozesses gegen (...) S. ”). The applicant companies stressed the fact that S. had confessed to the crime on the first day of the hearing. 18. On 4 February 2011 the presiding judge upheld the order. He held that the implications of the confession and its credibility could only be assessed at the end of the hearing. 19. Further hearings took place on 20 and 27 January 2011 and on 8 February 2011. On 10 February 2011 the Regional Court delivered its verdict, sentencing the defendant to prison on two counts of murder. 20. On 1 February 2012 the Federal Constitutional Court declined to consider a constitutional complaint by the applicant companies, without providing reasons ( no. 1 BvR 381/11). III. RECOMMENDATION BY THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE 24. The Appendix to the Recommendation Rec(2003)13 of the Committee of Ministers of the Council of Europe to member states on the provision of information through the media in relation to criminal proceedings (adopted by the Committee of Ministers on 10 July 2003 at the 848th meeting of the Ministers ’ Deputies) contains the following principles of particular interest to the present case: “ Principle 8 - Protection of privacy in the context of on-going criminal proceedings The provision of information about suspects, accused or convicted persons or other parties to criminal proceedings should respect their right to protection of privacy in accordance with Article 8 of the Convention. Particular protection should be given to parties who are minors or other vulnerable persons, as well as to victims, to witnesses and to the families of suspects, accused and convicted. In all cases, particular consideration should be given to the harmful effect which the disclosure of information enabling their identification may have on the persons referred to in this Principle. ... Principle 14 - live reporting and recordings in court rooms Live reporting or recordings by the media in court rooms should not be possible unless and as far as expressly permitted by law or the competent judicial authorities. Such reporting should be authorised only where it does not bear a serious risk of undue influence on victims, witnesses, parties to criminal proceedings, juries or judges. ” | This case concerned the complaint by two media companies about a judicial order banning the publication of images in which the defendant in a criminal trial for murder could be identified. |
565 | Placement of Roma gypsy children in “special” schools | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants were born in 1994 and 1992 respectively and live in Nyíregyháza. A. General background 6. The applicants are two young Roma men, who were diagnosed as having mental disabilities. As a result of these diagnoses, the applicants were educated at the Göllesz Viktor Remedial Primary and Vocational School, a remedial school (“special educational programme ” or “special” school) in the city of Nyíregyháza, created for children with mental disabilities. 7. The proportion of Roma students at the Göllesz Viktor Remedial Primary and Vocational School was 40 to 50% in the last ten years. Statistical data indicate that in 2007 Roma represented 8.7% of the total number of pupils attending primary school in Nyíregyháza. In 1993, the last year when ethnic data were officially collected in public education in Hungary, at least 42% of the children in special educational programme were of Roma origin according to official estimates, though they represented only 8.22% of the total student body. 8. According to statistical data in the Statistical Yearbook of Education, in 2007/2008 only 0.4– 0.6% of students with special needs had the opportunity to participate in integrated mainstream secondary education providing the Baccalaureate. Although one of the second applicant ’ s classmates was admitted to a secondary vocational school offering the Baccalaureate, neither of the applicants was enrolled in a Baccalaureate programme, which limited their access to higher education and employment. The first applicant was unable to follow a course to become a dance teacher, the career of his father; instead, he received special vocational training to become a baker. The second applicant continued his studies in a mainstream secondary vocational school which did not offer the Baccalaureate, and was unable to pursue his ambition to become a car mechanic. B. Societal context 9. Scholarly literature suggests that the systemic misdiagnosis of Roma children as mentally disabled has been a tool to segregate Roma children from non-Roma children in the Hungarian public school system since at least the 1970s. 10. The national Gypsy research in 1971 made it clear that a major obstacle to the education of Gypsy children was the existence of remedial (special) schools. In 1974/1975, 11.7% of Gypsy children attended special schools and classes. Due to the steady increase in Gypsy enrolment, by 1985/1986 their proportion had reached 17.5%, whereas only 2% of majority Hungarian students studied in special schools and classes. Eight grades finished in special education amounted to six grades in a normal school. Between 1972 and 1975, almost 50% of the lower grade special school students in Budapest were re - tested. The most significant result of the Budapest review was that if the borderline between sound and disabled mental abilities were set at IQ 70, the figure recommended by the World Health Organisation ( WHO ), then only 49.3% of students participating in special education qualified as mentally disabled, whereas 50.7% qualified as normal, of whom 12% had average intellect and 38.7% were borderline cases, that is, on the brink of mental retardation. However, only 7% were qualified as having average mental abilities through a complex evaluation. The complex evaluation qualified children whose test results suggested otherwise as intellectually disabled. In order to come to this conclusion, the category of familial intellectual disability was introduced, a notion distinct from pathological mental disability. 11. According to the Hungarian authorities, in 2004, 5.3% of primary school children were mentally disabled in Hungary, whereas this ratio stood at 2.5% in the European Union. In the last decade the rate of mentally disabled children has been continuously increasing in Hungary, especially in the ‘ mild mental disability ’ and ‘ other disability ’ categories. Children with disadvantaged background, especially Roma ones, are significantly over-represented amongst children with a disability. 12. The shortcomings of the diagnostic system were acknowledged by State authorities when in 2003 the Ministry of Education launched a programme entitled “Out of the Back Bench” with the stated aim of reviewing children and, after re-diagnosis, channelling those back to mainstream school who had been misdiagnosed. Through the programme, 2,100 children were reassessed and 11% of the re-diagnosed children were channelled back to normal school. In Szabolcs-Szatmár-Bereg County, where the applicants are from, this rate was 16%. 13. Part of the reason for the fact that so many children were considered disabled was that the definition of special educational needs in Act no. LXXIX of 1993 on Public Education (“the PEA”) and the definition of mental disability prior to 1 September 2003 (see paragraph 63 below) went beyond mental disability and included educational challenge, dyslexia and behavioural problems. 14. In 2007, the National Expert and Rehabilitation Committee (NERC) explained that an IQ between 70 and 85 represented a borderline intellect. A child in this range of IQ could have serious and persistent learning impairment. The expert evaluating each case had to assess what factors tilted the balance towards mental disability or sound mental ability. For example, weak abilities of abstraction or associative learning could indicate mental disability even above IQ 70. “Borderline intellect” was not on its own considered as mental retardation or a cause for placement in special school. 15. In 2004 the Minister of Education requested the expert panels to stop transferring children with scores above IQ 70 to special schools. That year, a new protocol and new standardised proceedings were adopted, calling for the disadvantaged situation of the child to be taken into account. If a child spoke the language of an ethnic minority, for instance, he or she could not be examined using verbal tests in Hungarian. Still, inequalities persisted. The greatest difference between Roma and non-Roma children occurred in a performance test, the so-called “Mosaic Test ”. One explanation for this is that Roma children have less experience with toys and games where units from bits or pictures from pieces (e.g. toy cubes with different pictures on each side, or puzzles, etc.) had to be assembled. C. Mr Horváth ’ s assessments 16. Mr Horváth started elementary education in the Göllesz Viktor Remedial Primary and Vocational School on the basis of the recommendation of the Expert and Rehabilitation Panel of Szabolcs-Szatmár-Bereg County (“the Expert Panel”). His examination was requested on 19 April 2001 by the nursery he was attending at that time. The nursery claimed that his mental and social abilities were lower than normal for his age, which showed in his sense of logic, drafting skills and communication. He spent very little time in the nursery, as he was sick most of the time. This, although a common cause for bad performance in tests, was not taken into account when his results were assessed. 17. The examination requested by the nursery was performed on 17 May 2001. In addition to the observation of his behaviour, his abilities (verbal, counting, cognitive, attention/concentration, visuo-motor coordination) and his performance, the following IQ tests were done : “Budapest Binet Test” – IQ 64; “Coloured Raven Test” – IQ 83; “Goodenough ‘ draw-a-person ’ Test ” – DQ 67. The Expert Panel did not elaborate in its opinion on the causes of the disparate results. 18. In its opinion, the Expert Panel diagnosed Mr Horváth with “mild mental disability”, of which the origin was declared unknown. The diagnosis stated that Mr Horváth was “two and a half years behind normal”, together with an immature central nervous system. Therefore, he was channelled to remedial school. As opposed to the WHO value of IQ 70, expert panels in Hungary applied, according to the Ministry of National Resources, IQ 86 as a border value between sound intellectual ability and mild mental disability. 19. Mr Horváth ’ s parents had been told by the Expert Panel even before the examination took place that he was going to be placed in a remedial school and they had been asked to sign the expert opinion before the examination took place. 20. On 3 December 2002 the Expert Panel re-examined Mr Horváth. It found that there was no development in his abilities, and reported that he was still suffering from mild mental disability. 21. On 28 April 2005 the Expert Panel again examined Mr Horváth. According to this examination, his “ Raven Test ” result was IQ 61. Therefore the Expert Panel declared that his status had not changed and upheld its previous opinion. 22. On 20 March 2007 another examination took place. This time, Mr Horváth ’ s “ Raven Test ” value was IQ 71. The Expert Panel noted that he had better knowledge than this test score reflected, had good results at school in 2006 and 2007, was integrated in his school system and able to study individually, had no impediment in speech and only needed some reassurance. In addition, it noted that he was active in classes, hard-working and complied with all the requirements of the curriculum. Noting that Mr Horváth studied in a remedial school, the Expert Panel again diagnosed him with mild mental disability and special educational needs. Therefore it upheld his placement in remedial school. 23. Mr Horváth ’ s parents were not invited to participate in the diagnostic assessments. His father signed only the opinion of 17 May 2001. It is unclear if the parents were provided with information about the procedure and their respective rights, including a right to appeal, or if a copy of the opinion was given to them. His father accompanied Mr Horváth to the first examination but was not allowed to attend the examination itself. The parents were told the result but no explanation about the consequences was given. 24. On 26 September and 2 October 2008 Mr Horváth was re-examined by the NERC as ordered by the first instance court (see paragraph 38 below). This opinion stated that the applicant had “mild mental disability” although the causes of the disability could not be established. D. Mr Kiss ’ s assessments 25. After spending seven months in nursery, Mr Kiss started elementary education in September 1999 in a mainstream school, Primary School No. 13 located in a Roma settlement of Nyíregyháza. In its decision of 4 January 1999, the local pedagogical advisory service concluded that he had learning difficulties “deriving from his disadvantaged social and cultural background” and advised him to be educated under a special programme but in a mainstream school. On 14 December 1999 the school requested an expert diagnosis based on his results in the first quarter of the school year, claiming that he had poor results, was often tired, his attention was volatile and his vocabulary poor. His IQ then measured 73. 26. On 15 May 2000 the Expert Panel diagnosed Mr Kiss with “mild mental disability”. According to the “ Budapest Binet Test ”, his IQ was 63, and he scored IQ 83 in the “ Raven Test ”. Relying on the results, the Expert Panel arranged for Mr Kiss to be placed at a school for children with mild mental disabilities. As rehabilitation, the Expert Panel proposed that his concentration and analytical-synthetical ability should be developed. The Panel ’ s opinion did not contain any explanation for the discrepancies between Mr Kiss ’ s IQ results in the various tests. 27. Mr Kiss ’ s parents objected to the placement of their child in the remedial school and insisted that he should be educated in a mainstream school, but in vain. They were not informed of their right to appeal against the Panel ’ s decision. Mr Kiss was then placed in Göllesz Viktor Remedial Primary and Vocational School. 28. During his studies, Mr Kiss won numerous competitions, including a poetry reading contest and sports competitions, and he was an A student until 7th grade. However, his teacher told him that he could not continue his studies to become a car mechanic as he intended to, because as a remedial school pupil, he could only choose between training courses offered by a special vocational school. 29. The Expert Panel subsequently re-assessed Mr Kiss twice, on 14 December 2002 and 27 April 2005. On the latter occasion the Expert Panel noted that, despite the fact that he had achieved good results at school, his analytical thinking was underdeveloped. His IQ based on the “ Raven Test ” scored 71, yet the Expert Panel stated that he needed to be educated further at the remedial school. 30. During the court procedure in the case (see below), the first-instance court ordered that Mr Kiss be examined by the NERC. According to the expert opinion of 20 November 2008, his mental capacity was normal, he was not mentally disabled and his SQ (social quotient) score was 90, which excluded mental disability. However, he had significant deficiencies with regard to acquired knowledge and had a learning impairment. As with the first applicant, the NERC found that the Expert Panel ’ s decision should have noted that socio-cultural factors had played a significant role in the shaping of their status from an early age, but in fact these factors and Mr Kiss ’ s disadvantaged situation were not taken into account. The NERC concluded that both applicants were provided with education adequate to their abilities. E. Review of the applicants ’ intellectual ability by independent experts 31. In August 2005 both applicants participated in a summer camp where the testing of 61 children with ‘ special educational needs ’ took place. The testing was carried out by independent experts. 32. Both applicants were assessed with various tests. With regard to Mr Horváth, the experts noted that his “ Raven Test ” (IQ 83) was under the average, but did not correspond to the “mentally disabled” score; therefore, he was not mentally disabled. His “Bender B Test” referred to immature nervous system potentially causing behavioural problems and problems in studying but he was not considered mentally disabled or unfit for an integrated mainstream class. 33. Mr Kiss ’ s “ Raven Test ” score was IQ 90, his “MAVGYI-R Test” score was IQ 79, and his verbal intelligence was 91. According to the assessment, he suffered from immaturity of the nervous system and dyslexia. The experts noted that he was sound of mind and could be educated in a school with a normal curriculum. They suggested immediate intervention by the authorities in order to place him into a mainstream school and to provide him with appropriate education. The experts also suggested a thorough pedagogical examination and the development of a subsequent individual learning plan with pedagogical and psychological help. They noted that he had to catch up with his studies in order to reduce the deficiencies he had as a result of studying under a lower curriculum. 34. The experts noted that the diagnostic methods applied should be reviewed, and that Roma children could have performed better in the tests if those had not been designed for children belonging to the ethnic majority. They stressed that the “ Raven Test ” measured intelligence only in a narrow margin and therefore provided less data with regard to intelligence. The experts further recommended that the “ MAVGYI-R ” child intelligence test should be reviewed and updated as it was outmoded and because oral tests were culturally biased and poorly compatible with the present lifestyle and knowledge of children. The experts also noted that the intelligence tests had a close correlation with school qualification; therefore education in a remedial class might significantly influence the results of an intelligence test of a 13/14-year-old child. The NERC found the independent experts ’ conclusions open to doubt. F. First-instance court proceedings 35. On 13 November 2006 the applicants filed a claim for damages with the Szabolcs-Szatmár-Bereg County Regional Court, requesting the court to establish a violation of the principle of equal treatment amounting to a violation of their personality rights under section 76 of the Civil Code and section 77(3) of the PEA. The action was directed against the Expert Panel, the Szabolcs-Szatmár-Bereg County Council and the Göllesz Viktor Remedial Primary and Vocational School. 36. The applicants claimed that the Expert Panel had discriminated against them and misdiagnosed them as being “mildly mentally disabled” on the basis of their ethnicity, social and economic background, and had subsequently ordered them to be educated in a special school, although they had normal abilities. They asserted that the expert panels were free to choose the tests applied by them, and it was well-known among experts that some tests were culturally biased and led to misdiagnosis of disadvantaged children, especially Roma ones. This systemic error originated in the flawed diagnostic system itself, which did not take into account the social or cultural background of Roma children, was as such culturally biased, and therefore led to the misdiagnosis of Roma children. They claimed that it was the responsibility of the experts who were required by the law to be experienced in the field of mental disabilities and thus obliged to know the symptoms of such disabilities to ensure that only children with real mental disability were educated in special/disabled/special educational needs classes. In addition, and in violation of the respective rules of procedure, the applicants ’ parents had not been informed of the Panel ’ s procedure or its consequences or of their rights to participate in the proceedings and to appeal against the decisions in question, so their constitutional right to a remedy was violated. 37. The applicants further asserted that the County Council had failed effectively to control the Expert Panel. They also claimed that the teachers working at the Remedial School should have noticed that they were of normal abilities. 38. The Regional Court ordered the applicants to be examined by the NERC. 39. On 27 May 2009 the Regional Court found that the aggregate of the respondents ’ handlings of the applicants ’ education had amounted to a violation of their rights to equal treatment and education and therefore ordered them, jointly and severally, to pay 1,000,000 Hungarian forints (HUF) in damages to each applicant. The court explained that it was called on to investigate whether the respondents had complied with the Constitution and the PEA, that is, ensured the applicants ’ civil rights without any discrimination, promoted the realisation of equality before the law with positive measures aiming to eliminate their inequalities of opportunity, and provided them with education in accordance with their abilities. It reasoned that – while the statutory definition of “special needs” had been amended several times in the relevant period – the relevant regulations clearly stipulated that the expert panels should individualise each case, decide on possible special needs in each case according to the needs and circumstances of the individual child, identify the reasons underlying any special needs, and establish specific support services which a child needed according to the extent of disability. 40. The court held that this kind of individualisation was lacking with regard to the applicants ’ diagnoses and that the Expert Panel had failed to identify those specific professional services that would help the applicants in their education. It had failed to establish during the applicants ’ examination and re-examination the reasons for which they were in need of special education, and whether they needed that as a result of their behaviour or of organic or non-organic reasons. 41. The court emphasised that the principle of equal treatment required that the Expert Panel decide whether children reaching school age might study in schools with a standard curriculum or in remedial schools with a special one. At the same time, the court noted that, in the present case, the operation of the Expert Panel was stalled due to ongoing restructuring and the low number of professional and other staff. Therefore, the Expert Panel could not perform its duty of continuous control examinations. 42. Moreover, in the court ’ s view, the County Council had failed to ensure effective control over the Expert Panel and therefore failed to note that the Panel had not informed the parents appropriately. In addition, the County Council had not ensured that the expert decisions were individualised according to the law. Therefore, the respondents had violated the applicants ’ right to equal treatment. G. Appeal procedure 43. The Expert Panel did not appeal and so the above decision became final and enforceable with regard to it. On appeal by the Remedial School and the County Council, on 5 November 2009 the Debrecen Court of Appeal reversed the first - instance judgment and dismissed the applicants ’ claims against those respondents. 44. The Court of Appeal accepted the Remedial School ’ s defence, namely that it had done no more than enrol the applicants according to the Expert Panel ’ s decision. It held that it was for the County Council to ensure effective control over the lawful operation of the Remedial School and the Expert Panel. An omission in this regard might establish the County Council ’ s liability, in particular because the parents ’ participatory rights had not been respected. 45. The Court of Appeal further noted that, in order to prevent the misdiagnosis and consequent segregation of Roma children into remedial schools, there was a need, unfulfilled as yet, for the development of a new diagnostic testing system which should take into account the cultural, linguistic and social background of children. However, it held that the lack of appropriate diagnostic tools and the subsequent placement of the applicants into remedial schools did not have any connection to their ethnic origin, and therefore found no discrimination against the applicants, concluding that their personality rights had not been violated. In its view, the applicants had not suffered any damage as a result of the unlawful conduct of the respondents, since, according to the court-appointed experts ’ opinion, they had been educated in accordance with their mental abilities. That opinion effectively confirmed the Expert Panel ’ s decisions. The Court of Appeal ’ s judgment further contains the following passage: “Examining the – not at all comprehensive – amendments [of the PEA and the decrees on its implementation which occurred after 1 January 2007], it can be established on the one hand that those amendments were predominantly and evidently occasioned by the progress of related science, the researches and the results of surveys, and on the other hand that the following of legislative developments in this period was almost an impossible task for those applying the law.” H. Review proceedings 46. The applicants subsequently submitted a petition for review to the Supreme Court. They argued that there was no national professional standard established with regard to the diagnostic system in Hungary. The well-known systemic errors of the diagnostic system, together with the disregard of the socially, culturally and linguistically disadvantaged background, had resulted in a disproportionately high number of Roma children diagnosed as having “mild mental disability”. 47. The applicants requested the Supreme Court to establish, as an analogy with the case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV), the misdiagnosis of Roma children, that is, that the channelling of Roma children with normal mental abilities into remedial schools constituted discrimination. Such misdiagnosis represented direct – or alternatively indirect – discrimination, based on the ethnic, social and economic background of the applicants. 48. The applicants further claimed that the Court of Appeal had wrongly concluded that there was no connection between the lack of appropriate diagnostic tools and the ethnic origin of the applicants. The fact that the tests themselves had no indication of ethnicity did not preclude that they forced a disproportionately high number of Roma children into a disadvantaged position in comparison with majority children. This practice amounted to a violation of section 9 (indirect discrimination) of Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (“the ETA”). In addition, the fact that the experts had disregarded the specific social, cultural and language components when assessing the test results had led to direct discrimination in breach of section 8 of the ETA. 49. The applicants also asserted that the respondents had not acted with due diligence in the circumstances, when – aware of the systemic error of the diagnostic system – they had failed to act according to international standards. In addition, Mr Kiss had been placed in a remedial school despite the explicit objection of the parents. 50. The Supreme Court reviewed the second-instance judgment and found it partly unfounded. It stated as follows: “Considering the relevant provisions of the [ETA] and the [PEA] ... the Supreme Court has to decide whether the respondents discriminated against the plaintiffs on the basis of their ethnic, social, economic and cultural background, which resulted in the deprivation of their rights to be educated in accordance with their abilities and therefore their rights to equal treatment, and subsequently whether their personality rights have been violated.” 51. The Supreme Court upheld the second-instance judgment with regard to the finding that the conduct of the Remedial School and the County Council had not violated the applicants ’ right to equal treatment, either in terms of direct or indirect discrimination. 52. The Supreme Court further noted: “The systemic errors of the diagnostic system leading to misdiagnosis – regardless of its impact on the applicants – could not establish the respondents ’ liability ... The creation of an appropriate professional protocol which considers the special disadvantaged situation of Roma children and alleviates the systemic errors of the diagnostic system is the duty of the State.” 53. The Supreme Court noted, however, that: “[T]he failure of the State to create such a professional protocol and [an eventual] violation of the applicants ’ human rights as a result of these systemic errors exceed the competence of the Supreme Court ... the applicants may seek to have a violation of their human rights established before the European Court of Human Rights. Therefore the Supreme Court has not decided on the merit of this issue.” 54. The Supreme Court further examined whether the respondents ’ liability could be established under the general rules of tort liability regardless of the fact that it had not established a violation of the applicants ’ personality rights. It found no such liability in respect of the Remedial School. However, it observed that the Expert Panel ’ s handling of the parental rights had violated the relevant law (Ministerial Decree no. 14/1994. (VI.24.) MKM ). The County Council was found liable for this on account of its failure to supervise the legality, or to organise the supervision of the legality, of the functioning of the Expert Panel, as well as to put an end to the unlawful practice. The prejudice to the applicants was caused by their deprivation of the right to a remedy provided for by law and thereby of the theoretical chance of obtaining a more favourable assessment of their learning abilities. The Supreme Court consequently upheld the first-instance judgment with regard to the payment of HUF 1,000,000 in damages to each applicant by the Expert Panel, out of which sum the County Council was obliged to pay HUF 300,000, on account of its deficient control. This decision was served on 11 August 2010. I. Structures 5. Particular attention should also be paid to the need to ensure better communication with parents, where necessary using mediators from the Roma/Gypsy community which could then lead to specific career possibilities. Special information and advice should be given to parents about the necessity of education and about the support mechanisms that municipalities can offer families. There has to be mutual understanding between parents and schools. The parents ’ exclusion and lack of knowledge and education (even illiteracy) also prevent children from benefiting from the education system. 6. Appropriate support structures should be set up in order to enable Roma/Gypsy children to benefit, in particular through positive action, from equal opportunities at school. 7. The member States are invited to provide the necessary means to implement the above-mentioned policies and arrangements in order to close the gap between Roma/Gypsy pupils and majority pupils. II. Curriculum and teaching material 8. Educational policies in favour of Roma/Gypsy children should be implemented in the framework of broader intercultural policies, taking into account the particular features of the Romani culture and the disadvantaged position of many Roma/Gypsies in the member States. 9. The curriculum, on the whole, and the teaching material should therefore be designed so as to take into account the cultural identity of Roma/Gypsy children. Romani history and culture should be introduced in the teaching material in order to reflect the cultural identity of Roma/Gypsy children. The participation of representatives of the Roma/Gypsy community should be encouraged in the development of teaching material on the history, culture or language of the Roma/Gypsies. 10. However, the member States should ensure that this does not lead to the establishment of separate curricula, which might lead to the setting up of separate classes. ” 73. The Opinion on Hungary of the Advisory Committee on the Framework Convention for the Protection of National Minorities, adopted on 22 September 2000 (CM(2000)165)), contains the following passage: “41. The Advisory Committee is deeply concerned about the well documented cases of improper treatment of Roma children in the field of education, notably through putting them in “special schools”, which are reserved ostensibly for mentally disabled children. The Advisory Committee stresses that placing children in such special schools should take place only when it is absolutely necessary on the basis of consistent, objective and comprehensive tests, which avoid the pitfalls of culturally biased testing. It considers it a positive step that the existence of and the need to address this unacceptable phenomenon has been recognised by the Ministry of Education. The Advisory Committee considers that the current situation is not compatible with Article 12(3) of the Framework Convention and must be remedied. ” 74. The Follow-up Report on Hungary (2002-2005) of the Council of Europe Commissioner for Human Rights (29 March 2006 ) ( CommDH(2006)11) contains the following passages: “29. The Ministry of Education estimates that 95% of children of school age are registered school attenders. Alongside the normal schooling programme, there is special educational provision for children regarded as requiring special attention on account of handicap. While the maximum size of ordinary classes is 25 children, the special classes have a maximum of 13 so as to ensure quality instruction. The per-pupil grant which central government makes to local authorities is doubled for children in the special classes. 30. Around 20% of Roma children continue to be assigned to special classes as against only 2% of Hungarian children. It should be noted that dyslexia is regarded as a serious difficulty requiring placement in a special class and that social marginality has sometimes also been treated as a handicap. As a result, whereas the proportion of handicapped children in Europe is 2.5%, it is 5.5% in Hungary on account of inappropriate or abusive placements of this kind. 31. A protection mechanism has recently been introduced which requires parental consent for a child to be placed in a special class. In addition, the child must be tested without delay to assess its abilities. During the visit it was explained to the delegation that the files of 2,000 children regarded as handicapped had been thoroughly checked to make sure that placement in a special class was strictly necessary and to put right any abusive placements which authorities had made for financial or segregation reasons. Of the 2,000 children concerned, 10% had been returned to ordinary schooling after the check – evidence that close supervision of placements must continue.” 75. The Report on Hungary of the European Commission against Racism and Intolerance (ECRI) (fourth monitoring cycle), adopted on 20 June 2008 and published on 24 February 2009, contains the following passages: “ 81. [Of ] the three levels of disabilities into which children in special schools may fall (“very serious” (requiring residential care), “medium-severe” or “mild ” disability ), the vast majority of children assessed as having a “mild disability” could, in the view of many NGOs, be integrated relatively easily in the ordinary school system: many children are misdiagnosed due to a failure to take due account of cultural differences or of the impact of socio-economic disadvantage on the child ’ s development, and others suffer from only very minor learning disabilities that do not warrant the child ’ s removal from the mainstream system. ECRI repeatedly heard that investments in teacher training should primarily be directed towards ensuring that teachers in the mainstream school system are equipped to deal with diverse, integrated classes, rather than towards perpetuating a system from which children, once streamed into it, are unlikely to break out, and which overwhelmingly results in low levels of educational achievement and a high risk of unemployment. Some actors have suggested that – bearing in mind that the best way of ensuring that children do not wrongly become trapped in special schools is to ensure that they are never sent down that track in the first place – the category of children with mild disabilities should simply be deleted from the Education Act and all children with mild disabilities integrated in the mainstream school system. 82. ECRI notes that the efforts made to date to combat the disproportionate representation of Roma children in special schools for children with mental disabilities, though they have had some positive effects, cannot be said to have had a major impact in practice so far. It stresses that, in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system, putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools. ” B. Other international texts 76. For other relevant international texts, see D.H. and Others v. the Czech Republic [GC], cited above, §§ 81 to 107; and Oršuš and Others v. Croatia [GC], no. 15766/03, §§ 87 to 97, ECHR 2010. | This case concerned the complaints of two young men of Roma origin that their education in schools for the mentally disabled had been the result of misplacement and had amounted to discrimination. |
388 | Risk of being sentenced to death | A. The first applicant: Mr Harkins 1. Proceedings in the United States 6. On 10 August 1999, in Jacksonville, Florida, Joshua Hayes was killed by a gunshot wound to the head in the course of a robbery. The first applicant was subsequently arrested for the murder of Mr Hayes and, on 3 February 2000, was indicted for first degree murder and attempted robbery with a firearm. On 7 February 2000 the prosecution filed a notice that they intended to seek the death penalty for the charge of first degree murder; that notice was subsequently withdrawn. According to an affidavit filed in support of the United States’ extradition request by Mr Charles Thomas Kimbrel, Assistant State Attorney (see paragraph 8 below), the prosecution case is based upon the testimony of a co-accused, Mr Terry Glover, who has since confessed and become a witness for the prosecution. His evidence is that he and the first applicant arranged for Mr Hayes to purchase marijuana from the first applicant. A meeting was arranged for delivery and payment. Mr Glover and the first applicant arrived at the meeting wearing masks. According to Mr Glover, the first applicant brandished a rifle and, when Mr Hayes refused to hand over the money, the first applicant shot him in the head. Mr Glover and the first applicant fled the scene, washed blood from their car at a carwash and threw the rifle in a river. The prosecution further rely on ballistics evidence, and other witnesses whom they intend to call at trial to prove that the applicant planned the robbery and left his residence with a gun shortly before the robbery and killing. The applicant maintains that initial police reports into Mr Hayes’ murder record Mr Glover as stating that he, the first applicant, hit Mr Hayes in the head with the gun and the gun went off. The police reports also directly refer to the killing as one of “felony murder”. (The Florida “felony murder rule” allows a defendant to be convicted of murder, even if there was no premeditation on his part, if he committed or was attempting to commit a serious felony offence (including armed robbery) at the time of the killing: see relevant Florida law at paragraph 51 below.) The applicant also maintains that the medical examiner’s report on Mr Hayes’ injuries demonstrates that the injuries are consistent with the gun going off accidentally. However, the first applicant denies being present at the fatal incident: he alleges that he only lent his car to one of those present, a Mr Randle, who went on to participate in the fatal robbery of Mr Hayes. After he was indicted, the applicant was released on bail and ordered to appear before the court on 12 July 2002. 2. The first applicant’s initial extradition proceedings in the United Kingdom 7. On 25 January 2003, the first applicant was arrested in the United Kingdom following a fatal car accident, for which he was subsequently sentenced to five years’ imprisonment. An extradition request was made by the United States’ Government on 7 March 2003. In an affidavit provided in support of the extradition request, Mr Charles Thomas Kimbrel, Assistant State Attorney, confirmed that the notice of intention to seek the death penalty had been withdrawn and that the prosecution sought a life sentence. 8. On 21 July 2003 the District Judge sitting at Bow Street Magistrates’ Court concluded that the evidence established a prima facie case against the first applicant and ordered that he be committed to prison to await the decision of the Secretary of State as to his surrender to the United States. 9. In a Diplomatic Note issued on 3 June 2005 the United States Embassy assured the United Kingdom Government that, based on an assurance the United States Department of Justice had received from the State Attorney of the State of Florida, the death penalty would not be sought or imposed on the first applicant. 10. On 1 June 2006 the Secretary of State refused the first applicant’s representations and ordered his surrender. On the basis of the assurance from the United States Government, the Secretary of State concluded that the death penalty would not be imposed on the first applicant and that extradition would not otherwise violate the first applicant’s rights under the Convention. 11. The applicant sought judicial review of the Secretary of State’s decision by the High Court. He argued inter alia that the assurance contained in the Diplomatic Note was inadequate because it had been issued by the United States Embassy whereas the prosecution would be conducted by the State of Florida and only an assurance from the State Governor would suffice. He further argued that the trial court in Florida was enabled by the applicable criminal procedure to consider the imposition of the death penalty irrespective of whether or not it was sought by the prosecution. 12. A further affidavit was then submitted by the Florida Assistant State Attorney, Mr Mark J. Borello, who stated that, as a matter of long-standing practice, the trial court would not conduct a sentencing hearing to decide whether to impose the death penalty when the State Attorney did not seek the death penalty; even if it were to do so, the State Attorney would not present any evidence in support of the death penalty, meaning that there would be no basis upon which the trial court could find there were sufficient aggravating circumstances to warrant the death penalty. Mr Borello therefore stated that the first applicant would not be subjected to the death penalty if he were convicted of first degree felony murder. 13. On the basis of this affidavit, and on the further basis that the Diplomatic Note was clear and binding as a matter of international law, the High Court found there was no real risk of the death penalty and accordingly refused the application for judicial review. On the same date, 14 February 2007, it also refused the first applicant’s application for certification of a point of law and permission to appeal to the House of Lords. 14. On 1 March 2007, the applicant’s solicitor informed the Secretary of State that an application had been made to the High Court for reconsideration of its decision. He relied on the affidavit sworn by an American attorney, which stated that the trial court could in fact impose the death penalty if sufficient aggravating features were found to exist in the first applicant’s case. By way of an order dated 20 March 2007, Florida Circuit Judge Michael Weatherby, the trial judge in the first applicant’s case, stated that no death penalty sentencing proceedings would be held and therefore the maximum sentence that could be imposed would be life in prison. It does not appear that the first applicant made an application to the High Court or that any such application was determined by that court. 15. On 19 February 2007 the first applicant lodged an application with this Court and, on 2 April 2007, the President of the Chamber to which the application was allocated decided to apply Rule 39 of the Rules of Court and to indicate to the Government of the United Kingdom that the applicant should not be extradited until further notice. It was also decided, under Rule 54 § 2(b), that notice of the application should be given to the Government of the United Kingdom and that the Government should be invited to submit written observations on the admissibility and merits of the case, including on whether any life sentence imposed on the first applicant would be compatible with Article 3 of the Convention. 3. Further proceedings in the United Kingdom 16. After the Government’s observations had been received, the first applicant indicated that he had submitted fresh representations to the Secretary of State on the issue of the imposition of a life sentence. Those representations were made on 24 September 2008. Further submissions were made in the light of the House of Lords’ judgment in Wellington v. the Secretary of State for the Home Department (see paragraphs 34 – 42 below) on 25 March 2009, 7 September 2009 and 28 October 2009. Proceedings before this Court were therefore adjourned while those representations were considered by the Secretary of State. 17. The Secretary of State refused the first applicant’s representations on 9 March 2010, relying in particular on this Court’s judgment in Kafkaris v. Cyprus [GC], no. 21906/04, 12 February 2008 and the Wellington judgment, cited above. He noted that, on the basis of information provided by the first applicant and the United States’ authorities, between 1980 and 1996 the Governor had commuted the sentences of forty-four defendants who had been convicted of first-degree murder. Although he was not constrained as to the factors he could take into account in granting clemency, the Governor took in account inter alia the nature of the offence and any history of mental instability. Moreover, the sentence of life imprisonment without parole had only been introduced in 1994. It was not unrealistic to assume that defendants who had received that sentence would be expected to serve more than fourteen to fifteen years before being considered for clemency and thus it was immaterial that the Governor had not granted clemency to anyone who had been given that sentence. 18. The Secretary of State also had regard to the first applicant’s representations that Florida law allowed for the imposition of a mandatory sentence of life imprisonment without parole either for: (i) premeditated murder; or (ii) if the defendant committed or was attempting to commit a serious felony offence (including armed robbery) at the time the person was killed (the “felony murder rule”). Having regard to the circumstances of the crime of which the first applicant had been accused, the Secretary of State was not satisfied that a sentence of life imprisonment without parole, even as a result of the felony murder rule, was grossly disproportionate. This conclusion was not altered by the applicant’s young age at the time of the offence, or the fact that he had submitted a psychiatric report, which showed he suffered from a severe personality disorder, with features of narcissistic and borderline personality disorders. Both these factors amounted to only limited mitigation. The Secretary of State was also satisfied that no separate issues arose under Articles 5 and 6 of the Convention in respect of life imprisonment without parole or the felony murder rule. 19. The first applicant sought judicial review of the Secretary of State’s decision, arguing that mandatory life imprisonment without parole as a consequence of the felony murder rule would be in violation of Article 3 of the Convention. The High Court dismissed that application on 14 April 2011 ([2011] EWHC 920 (Admin)). 20. Lord Justice Gross (with whom Mr Justice Davis agreed) considered it to be “wholly unreal” that the first applicant could be tried in England and Wales. He also applied the approach taken by the House of Lords in Wellington and, on the evidence before the court, concluded that the only mechanism for release of the first applicant was by clemency or conditional release on compassionate medical grounds. However, the clemency procedure had been from time to time exercised, despite the first applicant’s submission that it was subject to political pressure. The fact that no one convicted of first degree murder and sentenced to life imprisonment without parole had been granted clemency did not mean that there was no prospect of clemency being granted in the future to someone thus sentenced. Lord Justice Gross accepted the Secretary of State’s submission that, given that the sentence had only existed since 1994, it was unsurprising that no one sentenced to life imprisonment without parole had yet been granted clemency. 21. In respect of the felony murder rule, Lord Justice Gross found that the evidence showed that it was likely that, at trial, the prosecution would seek to argue that the first applicant’s shooting of Mr Hayes was a premeditated killing. There was, however, also a realistic possibility that the first applicant could be convicted by way of the felony murder rule and the prosecution was not bound to put the matter higher. Lord Justice Gross observed, however, that: “[T]he only ‘accident’ involved is the accidental discharge of the loaded and cocked firearm. The killing would thus not have been premeditated but would have resulted from a serious and most dangerous assault, committed in the course of a robbery. Insofar as it is permissible to have regard to English Law (as furnishing no more than a frame of reference), the most likely outcome, on that factual assumption, would be a conviction for manslaughter. Moreover, it would involve a very grave case of manslaughter indeed...On the material before us, it is fanciful to contemplate a complete acquittal on the basis of (true) ‘accident’.” He concluded: “64. First and importantly, it is necessary to clarify the ambit of the argument before this Court. It is not contended on behalf of Mr. Harkins that the Florida felony murder rule is unconstitutional on the ground of arbitrariness or its potential application to a wide range of circumstances and in cases of (relatively) low culpability. [Counsel’s] submission is instead confined to the contention that, on the facts of this case, the possible conviction of Mr. Harkins by way of the Florida felony murder [rule] means that his extradition would be incompatible with Art. 3. It follows that some of [counsel’s] more graphic examples of the scope of application of the Florida felony murder rule (e.g., to a man sentenced to LWOP [life imprisonment without parole] after lending his car to friends to commit a burglary, in the course of which a woman was killed), can be put to one side. The Court is concerned with the facts of this case and no question arises of accessory liability, remote from the killing; Mr. Harkins’ alleged role was plainly that of principal. 65. Secondly, the scope of the debate in this case has now been clarified. Realistically, for reasons already canvassed, this case is concerned with the possibility that Mr. Harkins will be convicted by way of the Florida felony murder rule for conduct (at best for Mr. Harkins) akin to manslaughter in the course of an armed robbery in this jurisdiction. It is fanciful to contemplate Mr. Harkins being at risk of conviction for what was an ‘accident’ truly so called; on any realistic view, there was no such ‘accident’ here. 66. Thirdly, it is of course a matter for the sentencing policy of the State of Florida whether mandatory LWOP is an appropriate sentence for the crime committed in this case, if Mr. Harkins is convicted. Bearing in mind that this Court is not engaged in a comparative sentencing exercise, it is helpful to keep the following matters in mind when considering whether, seen through ‘the prism of an application for extradition’ ( Wellington, supra, at [62]) the potential Florida sentence should be seen as clearly disproportionate: i) As this Court is only concerned with the facts of this case, the mandatory nature of the sentence does not carry the significance which it might, had the Court been engaged in some wider review of the law in question. ii) The (alleged) facts of the present case are shocking indeed. However analysed, should Mr. Harkins be convicted, he will have committed a grave crime; even on the most favourable (realistic) view of the facts for Mr. Harkins, his culpability will be high. On the (alleged) facts of this case, a severe sentence would be a punishment fitting the crime. iii) To the extent that it matters, it would be wrong to underestimate the likely sentence Mr. Harkins would face in this country, even were he convicted “only” of manslaughter rather than murder. It is probable that he would receive an indeterminate sentence of imprisonment for public protection (“IPP”), although the possibility of a life sentence cannot be excluded. In any event, so far as concerned the notional determinate element of an IPP or a determinate sentence if it stood alone, on the conduct alleged in the present case, Mr. Harkins could expect a significant sentence well into double figures. 67. Fourthly, against this background, I am unable to conclude that the imposition in the US of a sentence of LWOP on Mr. Harkins would be clearly disproportionate, although it would not be a sentence passed here. Given Mr. Harkins’ (alleged) conduct, it would not be a sentence which ‘shocked the conscience’. On any view, that the killing occurred in the course of an armed robbery is a most serious aggravating factor, made, if anything, yet more grave by the (alleged) fact that the loaded rifle had been cocked by Mr. Harkins before getting out of his car. 68. Fifthly, although I have carefully considered Mr. Harkins’ age at the time of the incident (he was 20), I am not dissuaded by that factor from the conclusion to which I am otherwise minded to come. 69. Sixthly, on the evidence and as already discussed, the sentence of LWOP is not irreducible. The significance of this feature for the Art. 3 jurisprudence was highlighted above. However, even if, contrary to my conclusion, the sentence was irreducible, on the (alleged) facts of this case, I would not regard the imposition of an irreducible sentence of LWOP as clearly disproportionate and thus in violation of Art. 3 – whatever questions might arise at some point in the course of Mr. Harkins’ detention. 70. Pulling the threads together, the case of Mr. Harkins does involve a young (alleged) offender, facing a mandatory sentence of LWOP. But, as the Court is solely concerned with the facts of this case, the mandatory nature of the sentence does not have the wider significance which might otherwise attach to it. Should he be convicted, Mr. Harkins will, on any (realistic) view, have committed a grave crime with high culpability. The sentence of LWOP is manifestly severe and different from the sentence he would face in this jurisdiction – but it cannot be seen as clearly disproportionate. It is, moreover, not irreducible, though even if it was, the imposition of the sentence per se would not be incompatible with Art. 3.” 22. The first applicant then applied to the High Court for a certificate of points of law of general public importance and for leave to appeal to the Supreme Court. On 14 June 2011, the High Court refused both applications. B. The second applicant: Mr Edwards 23. On 24 October 2006, a grand jury in Washington County, Maryland returned an indictment against the second applicant on eleven counts, relating to the death of a Mr J. Rodriguez, the non-fatal shooting of a second man, Mr T. Perry, and assault of a third man, Mr S. Broadhead. The first count of the indictment is murder in the first degree of Mr Rodriguez. The second count is attempted murder in the second degree of Mr Perry. The third and fourth counts are alternatives to counts one and two, charging the applicant with murder in the second degree of Mr Rodriguez and attempted murder in the second degree of Mr Perry. Counts five to seven charge the applicant with assault in the first degree upon the three men. Counts eight to ten charge him with assault in the second degree upon the men and count eleven charges him with using a handgun in the commission of a crime of violence. 24. The allegations giving rise to these counts are that, on the evening of 23 July 2006, the second applicant, Mr Rodriguez, Mr Perry and Mr Broadhead were at the apartment of a friend. The second applicant began to argue with Rodriguez and Perry who had made fun of his small stature and feminine appearance. The second applicant left the apartment and later returned with three other men. Mr Broadhead told the police that, while he was restrained by one of the other men in the kitchen, the second applicant produced a handgun and went into the living room. Shots were then fired which left Mr Rodriguez dead and Mr Perry with a non-fatal gunshot wound to the head. 25. On 21 January 2007, the second applicant was arrested in the United Kingdom pursuant to a provisional warrant of arrest issued under section 73 of the Extradition Act 2003. In an affidavit of 14 March 2007, Mr Joseph S. Michael, an attorney of the Office of the State’s Attorney for Washington County, Maryland, outlined the facts of the case and the charges against the applicant. On count one, he stated: “Although a defendant convicted of first degree murder may, under certain circumstances, be subject to the death penalty, none of those circumstances exist in this case. Consequently, the maximum penalty is life in prison.” 26. On 19 March 2007, the United States Embassy in London issued Diplomatic Note No. 12, which requested the second applicant’s extradition. The note specified that count one, first-degree murder, carried a maximum penalty of life imprisonment and that count two, attempted first-degree murder, also carried a maximum penalty of life imprisonment. Counts three and four each carried maximum penalties of thirty years’ imprisonment. Counts five to seven carried maximum penalties of twenty-five years’ imprisonment; counts eight to ten, ten years’ imprisonment; and count eleven, twenty years’ imprisonment. 27. On 23 March 2007, the Secretary of State certified that the extradition request was valid. In a decision given on 16 April 2007, the District Judge, sitting at the City of Westminster Magistrates’ Court, ruled that the extradition could proceed. He held that, inter alia, the second applicant’s extradition would not be incompatible with his rights under Article 3 of the Convention since the Maryland Criminal Code stated that it was for the State of Maryland to seek the death penalty and the extradition request clearly indicated that it would not do so. The District Judge accordingly sent the case to the Secretary of State for his decision as to whether the applicant should be extradited. 28. On 5 June 2007, the United States Embassy issued a further Diplomatic Note in respect of the second applicant, which assured the United Kingdom Government that the second applicant was not subject to the death penalty, the death penalty would not be sought or carried out against him upon his extradition to the United States, and that the Government of the United States has been assured of the same by the Deputy State Attorney of the State of Maryland. 29. On 27 June 2007, the Secretary of State ordered the second applicant’s extradition. The second applicant appealed to the High Court, inter alia, on the ground that a sentence of life imprisonment without the possibility of parole amounted to inhuman or degrading treatment in violation of Article 3 of the Convention. 30. On 26 July 2007, in a second affidavit in support of the extradition, Mr Michael provided further details of the sentence for first-degree murder under Maryland law. He stated: “5. This particular case qualifies for a maximum penalty of life imprisonment under Maryland Ann. Criminal Law § 2-201(b). The Death Penalty does not apply. 6. The State has the option of filing a notice to the Defendant that it will seek a sentence of life without the possibility of parole, which entitles the sentencing court to consider a sentence of life without parole, but does not require that the sentencing court impose such a sentence. 7. Given the heinous nature of the instant case, which the State characterizes as a[n] ‘execution style’ homicide, which claimed one life, and seriously and permanently injured a second victim, the State anticipates that it will seek a sentence of life without the possibility of parole under Maryland Ann. Criminal Law §2-203 and §2-304(a)(1). 8. In the instant case, in the event that the State did in fact file its notice of intention to seek life without parole, the trial judge would be the sole sentencing authority, and would have the discretion to seek a sentence of: - life without the possibility of parole; - life with the possibility of parole; - life with the possibility of parole, with all but a certain number of years suspended, followed by up to five years of probation. 9. In the undersigned’s experience, there is no way to accurately predict what sentence a defendant will face if convicted of first degree murder.” Mr Michael added that a person convicted of first-degree murder was entitled to a pre-sentencing investigation. This involved a report from the Department of Parole and Probation on the defendant and included information received from the victims. There was also the right to apply for review of the sentencing by the sentencing judge and thereafter review by three other judges of the circuit. Mr Michael also stated he was unprepared to offer an opinion on any mitigating factors which might affect the second applicant’s sentence if convicted of first-degree murder. He continued: “In general terms, the Washington County Circuit Court [the county where the second applicant would be tried] has considered as mitigating factors several known attributes possessed by Mr Edwards: youth and lack of serious criminal history. The single biggest mitigating factor in regard to whether a Defendant receives life without parole would be an acceptance of responsibility upon the part of a given defendant.” 31. Before the High Court, the second applicant accepted that his ground of appeal based on Article 3 of the Convention was precluded by the House of Lords’ ruling in R. v. Lichniak (see paragraph 67 below) and conceded that it had to be dismissed. On 27 July 2007, the High Court therefore dismissed the second applicant’s appeal on this ground, allowing only his appeal that count ten of the indictment was not an extraditable offence. It also refused to certify a point of law of general public importance which ought to be considered by the House of Lords. 32. On 1 August 2007 the second applicant lodged an application with this Court and requested an interim measure to prevent his extradition. On 3 August 2007 the President of the Chamber to which this application was allocated decided to apply Rule 39 of the Rules of Court and indicate to the Government of the United Kingdom that the applicant should not be extradited until further notice. XIII. Extradition 1. Extradition is an essential procedure for effective international co-operation in the fight against terrorism. ... 3. Extradition may not be granted when there is serious reason to believe that: (i) the person whose extradition has been requested will be subjected to torture or to inhuman or degrading treatment or punishment...” 4. The European Union Charter 50. Article 19 § 2 of the Charter of Fundamental Rights of the European Union provides: “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.” | Both applicants faced extradition from the United Kingdom to the United States where, they alleged, they risked the death penalty or life imprisonment without parole. The first applicant was accused of killing a man during an attempted armed robbery, while the second applicant was accused of intentionally shooting two people, killing one and injuring the other, after they had allegedly made fun of him. The United States authorities provided assurances that the death penalty would not be applied in their cases and that the maximum sentence they risked was life imprisonment. |
598 | Case-law of the European Court of Human Rights | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1990 and lives in St Petersburg. 7. In 2014 the applicant graduated with a master ’ s degree in philosophy from the Herzen State Pedagogical University of Russia ( РГПУ им. А. И. Герцена ). He then became liable to be called up for military service. 8. At the end of August 2014, in an attempt to find what he described as “a lawful way to avoid military service”, the applicant attended a legal seminar organised by the Committee of Soldiers ’ Mothers ( Комитет солдатских матерей ) in St Petersburg. He submitted that his participation in the seminar had finally allowed him to understand his adherence to pacifist philosophy. 9. On 4 September 2014 the applicant applied to the local military commissariat to be assigned to civilian service instead of compulsory military service. In support of his application, the applicant attached his curriculum vitae and a letter of recommendation from his place of work. 10. His application was examined by a military recruitment commission composed of seven members: a deputy head of the administration of the Frunzenskiy district of St Petersburg (the president of the commission); a head of the military commissariat of the Frunzenskiy district of St Petersburg; the secretary of the commission ( an employee of the military commissariat); a medical officer of the military commissariat responsible for the medical certification of individuals liable to be called up for military service; a deputy head of the local department of neighbourhood and juvenile police; a head of the educational department of the administration of the Frunzenskiy district of St Petersburg; and a deputy head of the employment office of the Frunzenskiy district of St Petersburg. 11. On 25 November 2014 the applicant ’ s application was dismissed. According to the minutes of the relevant meeting of the commission, the documents and information provided by the applicant were not sufficiently persuasive for it to conclude that he was a genuine pacifist. 12. On the following day the applicant brought a court action challenging that decision. The applicant attached his curriculum vitae and a letter of recommendation. 13. On 9 February 2015, while the judicial proceedings were still pending, the applicant lodged a second application to be assigned to civilian service instead of military service. That application was rejected as repetitive without having been considered on the merits. 14. On 25 February 2015 the Frunzenskiy District Court of St Petersburg dismissed a complaint lodged by the applicant, reasoning as follows: “ [The] court does not determine the existence of humanist or pacifist convictions from the personal file of the conscript, since [such convictions] are not mentioned in his curriculum vitae or [letter of recommendation from his place of work ]. His views regarding the impossibility of his performing military service should have been formed over a period of time ... spontaneously crystallised convictions cannot serve as grounds for requesting permission to perform alternative civilian service. Considering all the items of evidence provided and their intertwined nature, the court finds the circumstances relied on by the applicant to be not proven.” 15. On 12 August 2015 the St Petersburg City Court upheld the judgment of 25 February 2015 on appeal. The applicant did not participate in the appeal hearing for unspecified reasons. He did not adduce any new evidence before the appeal court. The relevant parts of the judgment read as follows: “... the right to have compulsory military service replaced with its civilian alternative does not imply that a citizen can unconditionally choose between the military and civilian types of service, and it does not mean that an individual ’ s negative attitude towards military service in itself ... guarantees the right to have compulsory military service replaced. This position is also reflected in the practice of the European Court of Human Rights, which has stated that only when opposition to military service is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person ’ s conscience or his deeply and genuinely held religious or other beliefs does it constitute a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9 [of the Convention ] ... [The court] finds that it is not sufficient for a citizen to simply indicate that his personal convictions conflict with his obligation to serve in the army in order to have compulsory military service replaced. An individual must substantiate such an assertion, indicate the reasons and circumstances that impelled him to ask for the replacement [of military by civilian service], list facts confirming those of his deep beliefs that conflict with the [the obligation to perform ] military service, and adduce relevant evidence. ... As can be seen from the facts of the case, [the applicant] ... presented his curriculum vitae, in which he listed his main periods of education, ... stated that his beliefs about human beings and their place in the world had been formed under the influence of several philosophers, and [stated] that his views on the army and the military way of life had been affected by his brother ’ s stories about his own army service. According to the applicant, his convictions had finally crystallised after he had attended a legal seminar organised by the Committee of Soldiers ’ Mothers in St Petersburg. A personal reference given to the applicant [by his employer] listed both his negative and positive qualities; however, like his curriculum vitae, it did not contain information demonstrating the existence of any deep convictions preventing him from performing military service. [The applicant] did not present any additional information [ ... ] before either the military recruitment commission, the first instance or the appeal court. [The applicant] has failed to prove ... the existence of a serious and insurmountable conflict between the obligation to serve in the army and his convictions ... ... [The applicant] was given an opportunity to bring to the attention of the military recruitment commission arguments [supporting] the existence of [his] convictions or religious beliefs ... However, no convictions objectively preventing him from performing compulsory military service were established.” 16. Subsequent cassation appeals lodged by the applicant were dismissed on 3 November 2015 by the St Petersburg City Court and on 24 March 2016 by the Supreme Court. The cassation courts fully endorsed the appeal court ’ s reasoning. | This case concerned the procedure in Russia for examining requests to replace compulsory military service with its civilian alternative. The applicant in the case, a recent graduate, complained that the authorities had refused his request because they found that he was not a genuine pacifist. |
750 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 8. Mr Anders Fredin, an agricultural engineer, and his wife Mrs Maria Fredin own several parcels of land in the municipality of Botkyrka. On the land there is a farm and a gravel pit. The parcel where the gravel pit is located consists of 27 hectares and is called Ström 1:3. It was specifically created in 1969 from parts of the other properties with a view to the exploitation of the pit. 9. When Mr Fredin ’ s mother bought the land in 1960 the commercial exploitation of the gravel pit had been at a standstill since the middle of the 1950s. In the meantime, gravel had been taken only for use on the farm. The Fredins were eager for exploitation to resume and, on 20 March 1960, they signed a licence agreement with two companies ("the Jehanders"), granting them, for an annual fee, the exclusive right to extract gravel from the pit for fifty years. The Jehanders subsequently acquired several other gravel pits in the vicinity and thus obtained, so the applicants allege, a quasi-monopoly on gravel production in the region. 10. In 1963 a prohibition on the extraction of gravel without a permit was introduced through an amendment to the Nature Protection Act 1952 ( naturskyddslagen 1952:688). On 11 December 1963 the County Administrative Board ( länsstyrelsen ) of Stockholm County granted Mr Fredin ’ s parents the necessary permit. This provided, inter alia, that exploitation had to be in conformity with a plan drawn up in May 1962; in particular, it had to be carried out in three stages, each of which should not exceed ten years. In addition, restoration works had to be carried out continuously during each stage and financial security lodged to cover the costs thereof. 11. On 4 September 1969 Mr Fredin acquired a fifth of the property by way of a gift from his mother. 12. On 1 July 1973 an amendment to the Nature Conservation Act 1964 ( naturvårdslagen 1964:822 - "the 1964 Act") - which had left unaffected the need for a permit - empowered the County Administrative Board to revoke permits that were more than ten years old (see paragraph 35 below). 13. On 31 July 1977 the applicants bought the remainder of the property, which thenceforth belonged as to two-thirds to Mr Fredin and as to one-third to his wife. The County Administrative Board was informed of the change in ownership. 14. Despite a number of requests over the years, the Jehanders had, at the time of the applicants ’ purchase, still not put the gravel pit to commercial use. The Fredins accordingly instituted court proceedings for breach of contract, but the dispute was resolved by a friendly settlement according to which the licence agreement was deemed to have terminated with effect from 1 October 1979. 15. On 3 October 1979 the applicants requested that the permit to take gravel should be formally transferred to them. With the consent of Mr Fredin ’ s parents they began to exploit the pit in 1980, partly through a new licensee. At about this time the County Administrative Board offered to redeem the exploitation permit from the applicants for a sum, according to them, of around 50,000 Swedish kronor. However, the applicants did not accept the offer. As from 1983 they conducted part of the business themselves through Kagghamra Grus AB, a limited liability company they owned. 16. On 30 May 1980 the County Administrative Board granted the applicants an exemption from the general prohibition in the 1964 Act against building near the seashore and allowed them to build a quay with shiploading equipment. The exemption was valid until further notice, but not for longer than the permit to exploit gravel. The Board stated that the "decision [did] not imply that any position [had] been taken as to the possibility of a future reconsideration of the gravel exploitation activities on the property". The applicants built the quay at a cost of 1,000,000 kronor and also invested some 1,250,000 kronor in the gravel exploitation business over the period from 1980 to 1983. 17. On 24 April 1981 the County Administrative Board asked the applicants to lodge a financial security of 40,000 kronor to cover restoration costs, this amount being subsequently increased to 75,000 kronor. 18. After the applicants had provided the security required, the County Administrative Board, by "partial decision" of 14 April 1983, amended its decision of 11 December 1963 (see paragraph 10 above) by transferring the permit to them. The Board added that it planned to issue new directives concerning restoration work and that, in view of the 1973 amendment of the 1964 Act (see paragraph 12 above), it intended to re-examine the permit question in 1983 with a view to a possible termination of the activities. 19. On 25 August 1983 the County Administrative Board notified the applicants that, in the interest of nature conservation, it was contemplating amending the permit so as to provide that exploitation of the gravel pit should cease by 1 June 1984. 20. In a memorandum dated 14 May 1984, the County Administrative Board indicated two possible ways of discontinuing the exploitation. One was to stop extraction as soon as possible because the environment was being damaged and there was already a satisfactory supply of gravel in the region. The other was to allow the exploitation to continue for a couple of years, thereby making it possible to give the area a natural shape. The memorandum was submitted to the National Environment Protection Board ( naturvårdsverket ) and to the municipality of Botkyrka. On 18 September 1984 the Board replied that it favoured the first alternative and that it considered that a reasonable exploitation-time had been afforded as the permit had been valid for twenty years. On 1 October the municipality expressed the opinion that a certain closing-down period was preferable as it would facilitate the restoration of the landscape. 21. In a new "partial decision" of 19 December 1984, the County Administrative Board ordered, inter alia, that: (a) the exploitation of gravel should cease within three years, i.e. by the end of 1987, by which time the area should also be restored; (b) as from the day of the decision further extraction from certain parts of the pit be prohibited; (c) before 1 March 1985 the applicants should increase the security to 200,000 kronor, to cover possible restoration costs resulting from the growing activity in the pit; they should also draw up a new work plan, so that the Board could fix the final conditions for the extraction and restoration works. 22. The applicants appealed to the Government, claiming that: (a) the County Administrative Board ’ s decision was in part based on insufficient scientific material; (b) it should not have followed the opinion expressed by the municipality of Botkyrka (see paragraph 20 above), in view of that opinion ’ s limited scope; (c) its decision, and also the opinion of the National Environment Protection Board, should have been based on the views of a geological expert; (d) it had not given the applicants ’ interests sufficient consideration and had not granted a reasonable closing-down period; (e) the order to submit a new extraction plan and to lodge security of 200,000 kronor constituted a financial penalty; (f) the prohibition on extraction from parts of the pit was unlawful as it amounted to a closing-down of the activities; (g) pursuant to the 1964 Act, as interpreted in the light of the Environment Protection Act 1969 ( miljöskyddslagen 1969:387) and the Water Act 1918 ( vattenlagen 1918:533), they had a protected right to exploit gravel for at least ten years from the transfer of the permit on 14 April 1983. 23. On 26 March 1985 the County Administrative Board submitted an opinion on the appeal, stating amongst other things that it had known, from its contacts with the Jehanders (see paragraph 9 above), that no exploitation of gravel was imminent. 24. In a decision of 12 December 1985 the Government (Ministry of Agriculture) dismissed the appeal, stating that they concurred with the County Administrative Board ’ s assessment. They ordered, however, that the validity of the permit should be extended to 1 June 1988 and that the security should be lodged on 1 March 1986 at the latest. 25. On 9 March 1987 the County Administrative Board adopted a restoration plan for the pit. 26. Before the expiry of the permit the applicants twice requested new permits, but to no avail. The last request was rejected by the Board on 18 May 1987. The applicants ’ appeal to the Government was dismissed on 9 June 1988, although the validity of the permit was extended until 1 December 1988. 27. On 1 December 1988 extraction of gravel from the pit ceased. The applicants had by then almost terminated the first of the three exploitation stages provided for in the plan attached to the permit of 11 December 1963 (see paragraph 10 above). 28. On 9 February 1989 the County Administrative Board requested the public prosecutor to institute criminal proceedings against Mr Fredin for non-compliance with the 1964 Act, in that he had not restored the gravel pit as provided for in the permit. These proceedings are still pending and the restoration work has not yet been carried out. 29. On 14 March 1989 the County Administrative Board rejected a request by the applicants for a special extraction permit in order to enable them to comply with the 1987 restoration plan (see paragraph 25 above). Their appeal to the Government was dismissed on 21 June 1989, and their application for judicial review under the new Act on Judicial Review of Certain Administrative Decisions (lag om rättsprövning av vissa förvaltningsbeslut 1988:205), which entered into force on 1 June 1988, was rejected by the Supreme Administrative Court on 13 December 1990. These proceedings are not the object of the present complaint. 30. As regards the impact of the revocation of the permit on the value of their property and of their wholly-owned licensee, Kagghamra Grus AB, the applicants have referred to three certificates. According to the first, issued by Mr Lars Carlsson, a consultant, on 17 March 1987, it appears from the accounts of the applicants ’ company that it would become insolvent without the income from the pit. The second certificate, drawn up on 1 September 1988 by Mr Nils Olof Rydstern, an economist, states that the applicants ’ company would have had an estimated market value of 14-18,000,000 kronor in 1988, had the applicants been able to extract gravel from 1980 onwards without any interference by the authorities. Mr Rydstern points out that this is not the company ’ s liquidation value. In the third certificate, dated 14 September 1988, Mr Hans Lagerqvist, a land-surveyor at the Senior Land-Surveying Authority ( överlantmäterimyndigheten ), notes that, as a result of the revocation of the permit, the gravel pit was considered in 1988 to be worth less than 1,000 kronor for general property-taxation purposes. Mr Lagerqvist ’ s own assessment, made on the assumption, inter alia, that the extraction of gravel would have continued according to the 1963 permit, concludes that the estate ’ s market value decreased by 15,500,000 kronor as a consequence of the revocation. Taking into account Mr Rydstern ’ s valuation, the total loss suffered by the applicants is estimated at approximately 28-31,000,000 kronor. 31. The applicants have also submitted a report by Mr Dick Karlsson, a consultant, according to which, in a large number of revocation cases concerning businesses that had been carried on for several years, the County Administrative Board had not ordered the restoration of the gravel pits at issue. The Board was also said to have given the holders of the permits in question the opportunity of obtaining new ones, should the supply of gravel on the market decrease. Mr Karlsson noted that in these cases the permits had been held by two companies, including one of the Jehanders (see paragraph 9 above). He concluded that the Board ’ s decision concerning the applicants ’ permit was exceptional, in that it terminated an ongoing profitable business. | This case concerned the revocation of a licence to operate a gravel pit situated on the applicants’ land on the basis of the Nature Conservation Act. According to the applicants the revocation of their exploitation permit had amounted to a deprivation of property. |
1,084 | Dismissal | I. THE CIRCUMSTANCES OF THE CASE 7. Under a contract of indefinite duration dated 25 August 1980, the applicant was appointed by the State of Kuwait as accountant in the Kuwaiti embassy in Paris. He became head accountant on 17 April 1985, when a note by the Ambassador entitled “Organisation of Accounts Department at Kuwaiti Embassy in Paris ” set out the applicant ’ s duties as follows: “(a) To oversee all the work of the accounts department. (b) To supervise the staff working in that department in respect of the tasks assigned to them, and to ensure compliance with the rules governing working hours and the volume and distribution of work. (c) The above-mentioned accountant must sign all payment orders, accounting invoices and everything connected with that activity. (d) In addition the accountant is entrusted with the management of administrative tasks. (e) The accountant shall be accountable to his superiors for any shortcomings in respect of everything connected with the work of his department.” 8. On 3 December 1999 some twenty employees of the Embassy signed a statement to the effect that the applicant had, since his appointment, unofficially assumed the role of staff representative, with the result that he had resolved all disputes between the staff and the diplomatic mission for the past nineteen years. 9. A certificate of employment dated 19 January 2000 indicates that the applicant “is employed by the Embassy as Head Accountant”. 10. On 27 March 2000 the applicant ’ s contract was terminated on the following economic grounds: “ The restructuring of all the Embassy ’ s departments, in accordance with general instructions from the Ministry of Foreign Affairs of the State of Kuwait. The Embassy is obliged to abolish your post as a result of the new regulations of the Ministry of Foreign Affairs of the State of Kuwait. ” 11. Disagreeing with the reasons given for the termination, the applicant brought proceedings in the Paris Employment Tribunal ( conseil de prud ’ hommes ) seeking various sums in compensation for dismissal without genuine or serious cause. 12. In a judgment of 29 November 2000, the Employment Tribunal began by refusing to allow the objection to admissibility raised by the State of Kuwait, finding as follows: “A plea of inadmissibility has been raised on grounds of jurisdictional immunity. Whilst Article 31 of the Vienna Convention provides that diplomatic agents enjoy immunity from the criminal jurisdiction of the receiving State, and also from its civil and administrative jurisdiction, the latter immunity does not cover actions relating to any professional or commercial activity exercised by the diplomatic agent in the receiving State outside his official functions. Mr Farouk Sabeh El Leil was recruited and employed in France, under a contract of indefinite duration signed in Paris and performing [ sic ] in French territory. His pay statements bear a SIRET [registration] number. The letter summoning him to a preliminary meeting fully satisfies the provisions of Article L.122-14-4 of the Labour Code, indicating that Mr Farouk Sabeh El Leil was entitled to be assisted by a third party from the list kept by the préfecture. In the present case, the duties of head accountant entrusted to Mr Farouk Sabeh El Leil in an internal management context fell within the framework of an expressly private-law activity and the jurisdiction of the ordinary French courts, as the employer has acknowledged through the above-mentioned elements.” 13. On the merits, the Employment Tribunal found that the termination of the applicant ’ s employment “which was decided abruptly after twenty years of irreproachable work without punishment or criticism”, had not been based on a genuine and serious cause. It awarded the applicant a sum representing twelve months of salary by way of compensation for dismissal without a genuine and serious cause, plus compensation in lieu of notice, together with sums in respect of unpaid overtime, time off in lieu that he had not been able to take, annual leave, and his inability to register with the ASSEDIC (“ Association for employment in industry and commerce”) from which he was entitled to receive unemployment benefit, amounting to a total of 539,358 francs (equivalent to 8 2,224.60 euros ). Moreover, the Employment Tribunal ordered the employer to issue the applicant with a certificate of employment and two pay statements, failing which it would be fined 1,000 francs per day. 14. Disagreeing with the amount of the award, the applicant lodged an appeal against the judgment. 15. In a judgment of 22 October 2002 the Paris Court of Appeal set aside that judgment, finding as follows: “ Admissibility of the claims The State of Kuwait argued that Mr Sabeh El Leil ’ s claims were inadmissible on account of its jurisdictional immunity. Mr Sabeh El Leil challenged the plea of inadmissibility, arguing that such immunity did not extend to proceedings concerning contracts of employment. He considers that his duties as head accountant fell expressly within the framework of a private-law activity rather than an activity of governmental authority. Mr Sabeh El Leil ’ s claims are directed against the State of Kuwait, represented by its embassy and its Ambassador in Paris and not against the embassy ’ s director himself. It must therefore be ascertained whether, in the present case, the State of Kuwait enjoys the jurisdictional immunity afforded to foreign States. Mr Sabeh El Leil ’ s last post was that of head accountant in the embassy ’ s accounts department. He also assumed certain additional responsibilities: responsibility for administrative matters, responsibility for legal affairs, responsibility for the payment and follow-up of financial contributions concerning the Kuwait Boundary Demarcation Commission, and responsibility for supervising the bank accounts of the Council of Arab Embassies [ sic ]. Mr Sabeh El Leil, in view of his level of responsibility and the nature of his duties as a whole, did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service. He thus participated in acts of governmental authority of the State of Kuwait through its diplomatic representation in France. His claims against the State of Kuwait are thus inadmissible by virtue of the principle of jurisdictional immunity of foreign States.” 16. The applicant appealed against that judgment to the Court of Cassation. In his full pleadings he challenged the finding that his claims against the State of Kuwait were inadmissible. He invoked a breach of Article 455 of the New Code of Civil Procedure, on the ground that the judgment had not given sufficient reasons, since the inadmissibility had been based : “ on the mere assertion that outside his accounting duties [he] assumed responsibilities in administrative matters, legal affairs ..., leading to the conclusion that in view of his level of responsibility and the nature of his duties as a whole, he did not perform mere acts of management but enjoyed a certain autonomy which meant that he carried out his activities in the interest of the public diplomatic service and participated in acts of governmental authority of the State of Kuwait ...” He developed his arguments as follows: “The judgment appealed against purportedly applied the principle whereby ‘ foreign States and bodies acting for them or on their behalf enjoy jurisdictional immunity not only for acts of governmental authority but also for acts performed in the interest of a public service ’ ... This principle implies, conversely, that the immunity of the foreign State from jurisdiction does not apply, in matters of employment contracts, where the employee had ‘ no particular responsibility in the performance of public service, such that his dismissal constituted an act of administration ’ ... That was precisely the situation of [the applicant ], who performed accountancy duties only.” 17. On 23 March 2005 the Court of Cassation, ruling in the context of the preliminary admissibility procedure for appeals on points of law, as provided for by Article L. 131-6 of the Code of Judicial Organisation, held that the ground of appeal was “not such as to warrant admitting the appeal on points of law”. | This case concerned the complaint of an ex-employee of the Kuwaiti embassy in Paris, that he had been deprived of access to a court to sue his employer for having dismissed him from his job in 2000. He complained that he had been deprived of his right of access to a court in violation of Article 6 § 1 (right to a fair trial) of the Convention, as a result of the French courts’ finding that his employer enjoyed jurisdictional immunity. |
1,019 | Right to respect for private life (Article 8 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant was born in 1943 and lives in London. 5. The applicant suffered an incapacitating stroke in September 1999 which left her with severely limited mobility. In April 2006 she fell heavily, breaking her hip in several places. She then suffered two further falls, both of which resulted in further hospitalisation. 6. The applicant has a small and neurogenic bladder. As a result, she usually has to urinate some two to three times a night. On account of her mobility problems she is unable safely to access a toilet or commode unaided. 7. In March 2007, after the applicant ’ s third fall, she applied to the Independent Living Fund (“ILF”) for full day and night support. While the application was pending she was provided with a care package by the local authority (the Royal Borough of Kensington and Chelsea) which included seventy hours per week of night-time care. The application to the ILF was ultimately unsuccessful as the applicant ceased to be eligible for funding when she turned sixty-five in 2008. 8. A local authority care plan dated 27 April 2007 indicated that the applicant needed “assistance with toileting, when it ’ s required during the night”. Likewise, the FACE (Functional Analysis of Care Environments) Overview assessment which followed on 8 January 2008 noted that “Miss McDonald needs assistance to manage continence at night. Substantial need.” 9. However, the FACE Overview Assessment was subsequently amended to read “Miss McDonald needs assistance at night to use the commode. Moderate need.” 10. A further Needs Assessment was started on 19 February 2008 and signed off on 29 February 2008. It noted: “Ms McDonald wanted to emphasise that she requires assistance with all transfers and when she mobilises. Ms McDonald requested night care in order [for] someone to assist her using commode during the night. This is because Ms McDonald does not wish to use incontinence pads and sheets ... Summary of Needs Assessment Ms McDonald needs assistance to use the commode at night. Substantial need.” 11. A further Needs Assessment signed off on 28 October 2008 concluded that “Miss McDonald needs assistance to use the commode at night. Substantial need.” This assessment was subsequently described by Lord Dyson as “a concession” granted on a “temporary basis” (see paragraph 53 of the opinion of the Supreme Court). 12. On 17 October 2008 a formal decision was taken to reduce the amount allocated for the applicant ’ s weekly care from GBP 703 to GBP 450. This figure appears to have been assessed on the basis that the applicant would be provided with incontinence pads in lieu of night-time care. This decision was taken at a meeting between the local authority and the applicant at the applicant ’ s home. She was formally notified of the decision by letter dated 21 November 2008. It noted that: “As stated at the meeting, the rationale behind the planned reduction is that we consider the current provision to be in excess of that required to meet your eligible needs under the council ’ s Fair Access to Care Services criteria. The council has a duty to provide care, but we must do so in a way that shows regard for use of public resources.” 13. On 22 December 2008 the applicant sought permission to apply for judicial review on the ground that the local authority was unreasonably and unlawfully failing to meet her assessed and eligible needs. She further submitted that the local authorities ’ actions would cause her to suffer indignity which would amount to an interference with her right to respect for her private life in breach of Article 8 of the Convention. 14. Pending judicial consideration of the applicant ’ s complaints, a “holding compromise” was reached : from November 2008 to December 2008 she continued to receive night-time care five days a week and between December 2008 and September 2011 she received night-time care four nights a week. During this period the applicant ’ s partner stayed with her when night-time care wasn ’ t provided in order to assist her. In September 2011 all night-time care was withdrawn. 15. On 5 March 2009 the application was refused by a Deputy High Court Judge. Although the judge accepted that the local authority was obliged to meet the applicant ’ s assessed need, she found that the assessed need was not “assistance to use the commode at night” but rather ensuring the applicant ’ s safety. The judge considered there to be two ways to meet that need: the provision of a night-time carer or the provision of incontinence pads. The statutory scheme requiring that the applicant ’ s needs be met allowed the local authority some flexibility about how that was to be done and the local authority was therefore quite entitled to meet the need in the most economic manner. The judge further considered the applicant ’ s complaints under Article 8 of the Convention to be “parasitic” upon the first ground being established and did not, therefore, consider that they raised any issues which needed to be gone into. 16. Following that decision, the local authority carried out a Care Plan Review. The review, which was dated 4 November 2009, concluded that “It remains Social Service ’ s view that the use of incontinence pads is a practical and appropriate solution to Ms McDonald ’ s night-time toileting needs. There does not seem to be any reason why this planned reduction to provide care should not go ahead ... ” 17. After a visit to the applicant ’ s home on 15 April 2010, a further Care Plan Review was conducted. It was noted that “Ms McDonald did not want to discuss the option of using incontinence pads or Kylie sheets (absorbent sheets) as a way of meeting her toileting needs”. The Review concluded: “I remain of the opinion that Ms McDonald ’ s need to be kept safe from falling and injuring herself can be met by the provision of equipment (pads and/or absorbent sheets). She has however consistently refused this option. I am aware that she considers pads and/or sheets to be an affront to her dignity. Other service users have held similar views when such measures were initially suggested but once they have tried them, and been provided with support in using them, they have realised that the pads/sheets improve the quality of life by protecting them from harm and allowing a degree of privacy and independence in circumstances which, as the result of health problems, are less than ideal. The practicalities can be managed within the existing care package to accommodate Ms McDonald ’ s preferred bedtime and to allow her to be bathed in the morning and/or have sheets changed. If Ms McDonald were willing to try this option, she might similarly alter her views. ... ... ... In light of her entrenched position on this, and despite the council ’ s view that pads and/or sheets are the best way to ensure Ms McDonald ’ s safety, consideration has been given to Extra Care Sheltered Housing as a means by which Ms McDonald could continue to receive support throughout the day and night. This would be consistent with her wish to receive personal care and also remain living independently in the community. It is not the recommended option because being assisted to access the toilet at night carries a risk of falls, but has been explored because of the impasse as regards the use of pads. Such accommodation will make support available 24 hours a day and reduce any longer term need to provide residential care to Ms McDonald should her needs increase in future. Ms McDonald refused this option when it was discussed with her.” 18. The applicant applied to the Court of Appeal for permission to appeal against the refusal of permission to apply for judicial review on the grounds first, that the reduction in funding was inconsistent with the assessment of her night-time needs; secondly, that the reduction in funding violated her rights under Article 8 of the Convention; and thirdly, that in reducing her funding the local authority had failed to comply with its obligations under the Disability Discrimination Act 1995. In particular, she argued that if forced to use incontinence pads she would “lose all sense of dignity” and, as a consequence, she would suffer considerable distress. The local authority submitted that the provision of a night-time carer would cost GBP 22,270 per year, which would have to be paid out of the adult social care budget from which all other community care services for adults in the applicant ’ s borough were funded. The local authority also argued that the use of pads would ensure the applicant ’ s safety and provide her with greater privacy and independence in her own home. Finally, the local authority submitted that the weekly funding of GBP 450 could be used according to the applicant ’ s preferences. She could therefore pay for a bedtime visit for the purpose of fitting the pads, and even a subsequent visit if necessary. 19. Upon the applicant ’ s application for permission to appeal, a single Lord Justice granted permission and directed that the claim for judicial review should be heard by the Court of Appeal. In a decision dated 13 October 2010 the Court of Appeal departed from the judgment of the Administrative Court insofar as it did not consider that it was appropriate for the courts to re-categorise the applicant ’ s needs as assessed by the local authority. It therefore found that between 21 November 2008 (the date of the disputed decision letter) and 4 November 2009 (the date of its first care plan review) the applicant ’ s assessed need had been for assistance to use a commode. In failing to provide such assistance, the local authority had been in breach of its statutory duty. However, it had mitigated the breach by entering into an arrangement with the applicant ’ s partner. Moreover, the 21 November 2008 decision had not been put into operation and applicant ’ s need had been reassessed in the Care Plan Reviews of November 2009 and April 2010. As a consequence, the court found that the applicant had no substantive complaint under this head. 20. With regard to the complaint under Article 8 of the Convention, the Court of Appeal found that the conditions for finding a breach had not been established. Even though the local authority had failed in its duty at the time of its November 2008 decision, the error was not born of any lack of respect for the applicant ’ s dignity but of a concern to perform the difficult task of balancing its desire to assist the applicant with its responsibilities to all its clients within the limited resources available to it. 21. Finally, the court held that there had been no failure to comply with any obligations under the Disability Discrimination Act 1995. 22. The applicant was granted permission to appeal to the Supreme Court. She argued that: the Court of Appeal had been wrong to hold that the 2009 and 2010 Care Plan Reviews were to be read as including a reassessment of her needs; the decision to provide her with incontinence pads instead of a night-time carer had unjustifiably interfered with her rights under Article 8; and there had been a failure to comply with the Disability Discrimination Act 1995. 23. By a majority, the Supreme Court agreed with the Court of Appeal that the applicant ’ s needs had been reassessed on 4 November 2009, as the local authority had been entitled to do; that, from that date onwards, there had been no interference with the applicant ’ s rights under Article 8 of the Convention; and that there had been no failure to comply with the Disability Discrimination Act 1995. 24. With regard to the complaint under Article 8, Lord Brown observed that even if a direct link existed between the measures sought by the applicant and her private life, the clear and consistent jurisprudence of this Court established that States enjoyed a wide margin of appreciation in striking a fair balance between the competing interests of the individual and of the community as a whole. He went on to state that : “There is, of course, a positive obligation under Article 8 to respect a person ’ s private life. But it cannot possibly be argued that such respect was not afforded here. As already indicated, the respondents went to great lengths both to consult the appellant and [her partner] about the appellant ’ s needs and the possible ways of meeting them and to try to reach agreement with her upon them. In doing so they sought to respect as far as possible her personal feelings and desires, at the same time taking account of her safety, her independence and their own responsibilities towards all their other clients. They respected the appellant ’ s human dignity and autonomy, allowing her to choose the details of her care package within their overall assessment of her needs: for example, the particular hours of care attendance, whether to receive direct payments in order to employ her own care assistant, and the possibility of other options like extra care sheltered housing. These matters are all fully covered in paras 5, 42 and 66 of Rix LJ ’ s judgment below. Like him, I too have the greatest sympathy for the appellant ’ s misfortunes and a real understanding of her deepest antipathy towards using incontinence pads. But I also share Rix LJ ’ s view that the appellant cannot establish an interference here by the respondents with her Article 8 rights. I add only that, even if such an interference were established, it would be clearly justified under Article 8(2) – save, of course, for the period prior to the 2009 review when the respondent ’ s proposed care provision was not ‘ in accordance with the law ’ – on the grounds that it is necessary for the economic well-being of the respondents and the interests of their other service-users and is a proportionate response to the appellant ’ s needs because it affords her the maximum protection from injury, greater privacy and independence, and results in a substantial costs saving.” 25. In her dissenting opinion, Lady Hale considered that the need for help to get to the lavatory or commode was so different from the need for protection from uncontrollable bodily functions that it was irrational to confuse the two and to meet the need for one in a manner appropriate for the other. She would therefore have allowed the appeal. | This case concerned a lady with severely limited mobility who complained about a reduction by a local authority of the amount allocated for her weekly care. The reduction was based on the local authority’s decision that her night-time toileting needs could be met by the provision of incontinence pads and absorbant sheets instead of a night-time carer to assist her in using a commode. The applicant alleged that the decision to reduce her care allowance on the basis that she could use incontinence pads at night, even though she was not incontinent, had amounted to an unjustifiable and disproportionate interference with her right to respect for private life, and had exposed her to considerable indignity. |
995 | Prohibition of inhuman or degrading treatment (Article 3 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1969 and lives in Illertissen. The second applicant was born in 1989 and lives in Harburg. A. Police operation 6. On 9 December 2007 both applicants went to a football match in Munich. 7. The police had predicted an increased risk of clashes between rival football supporters owing to confrontations at previous matches between the two teams. Therefore a total of 227 police officers were deployed, including two squads – comprising eight to ten police officers each – of the 3 rd platoon of the Munich riot control unit ( Unterstützungskommando ), one squad of the 2 nd platoon of the Munich riot control unit and the 23 rd platoon of the 6 th Dachau public - order support force battalion ( Bereitschaftspolizei ). The deployed officers of the Munich riot control unit also included “video officers”, who carried handheld video cameras and recorded videos of incidents that might be relevant under criminal law. The officers of the Munich riot control unit were dressed in black/dark blue uniforms and wore black helmets with visors. The officers of the Dachau public - order support force battalion wore green uniforms and white helmets with visors. Both uniforms did not include any name tags or other signs identifying the individual officers. However, on the back of the helmets an identification number of the squad was displayed. 8. After the match had ended the police cordoned off the stands of the supporters of one of the teams, including both applicants, to prevent them from leaving the stadium and encountering supporters of the other team. The cordon was lifted after around fifteen minutes. 1. The applicants ’ version of the subsequent events 9. According to the first applicant, he left the stands after the blockade had been lifted. While walking between the exit of the stands and the exit of the football stadium a group of police officers dressed in black uniforms came running towards the exiting spectators with their truncheons raised above their heads. Some of these officers started hitting the spectators with their truncheons without any prior warning as soon as they reached them. The first applicant himself was hit with a truncheon on the head, which resulted in a bleeding laceration of 3 cm behind his ear. After having reached the exit of the stadium he was treated by a paramedic in an ambulance that was parked close to the ground. Subsequently, he returned to his home town, where he was treated in the emergency unit of the local hospital. 10. The second applicant also exited the stands after the blockade had been lifted. Before exiting the stadium he was grabbed by the shoulder and, after turning round, had pepper spray doused in the face at close range. He lay down on the ground and was subsequently struck on his left upper arm with a truncheon. He suffered swelling and redness of his face and pain in his arm. 11. Both applicants were able to identify their attackers as police officers, but were not able to distinguish them further, owing to their identical uniforms and the lack of identifying signs or name tags. 2. The Government ’ s version of the subsequent events 12. According to the Government the blockade was lifted due to the aggressive behaviour of some of the spectators and the pressure applied to the police cordon. When the supporters streamed from the stands towards the exit, they came upon police units which had been called in to provide backup for the police cordon. Subsequently some of the supporters continued their aggressive behaviour towards these officers and provoked them. The supporters ’ conduct resulted in the arrest of one supporter and two police officers sustained minor injuries. After a few minutes the police pacified the situation and got the exiting supporters under control. 13. The Government furthermore challenged the accounts of the applicants and submitted that there was no credible evidence that the applicants had deliberately been hit or harmed by police officers and that the injuries had been a result of the police operation. B. Investigation 14. As of 15 December 2007 the press reported about the police operation in the aftermath of the football match, inter alia quoting football supporters describing arbitrary attacks by police officers of the riot control unit with truncheons and pepper-spray. In an article of 18 December 2007 a spokesperson of the police commented on the operation and stated that the alleged assaults by police officers would be investigated. On 2 January 2008, the Munich public prosecutor ’ s office instigated a preliminary investigation. On 21 January 2008 the second applicant reported the alleged police violence and submitted a medical certificate concerning the effects of the pepper spray on his face from the same day. He filed a formal criminal complaint on 7 March 2008. The first applicant filed a criminal complaint against an unidentified police officer on 25 April 2008. He also submitted a medical certificate confirming a bleeding laceration on his head. The certificate was issued at 12.05 a.m. on 10 December 2007. Several other spectators at the match had also lodged criminal complaints against unidentified police officers. 15. The investigation was conducted by the unit of the Munich police responsible for offences perpetrated by public officials under the responsibility of the Munich public prosecutor ’ s office. The officer in charge interviewed a total of twenty witnesses, including the applicants, the officer in charge of the Munich riot control unit and the squad leaders of the deployed squads of the 2 nd and 3 rd Munich riot control units. 16. The investigating division was also provided with a DVD showing excerpts of the video surveillance recorded by the riot control police at the football match. The DVDs were compiled by the “video officers” of the Munich riot control unit. In line with their usual procedure the entire recorded video material was reviewed by the respective video officer after his or her deployment and the parts which were deemed relevant under criminal law and of sufficient quality to serve as evidence were copied to a DVD. 17. On 10 September 2008 the competent public prosecutor discontinued the investigation. He found that the investigation had produced evidence that some of the police officers had used truncheons against spectators, including women and children, in a disproportionate way and without an official order or approval. However, he concluded that the investigation had not led to a situation where concrete acts of violence could be related to specific police officers and it could not be ascertained either whether the use of force had been justified. In sum, the public prosecutor had been able neither to establish whether the applicants ’ injuries had been inflicted by police officers nor to identify the suspects who had allegedly struck and used pepper spray on the applicants. 18. The applicants appealed against the decision to discontinue the investigation and argued, in particular, that the public prosecutor had only questioned the squad leaders, but had not identified all the officers involved in the operation and deployed in the area of the stadium at issue. 19. On 14 October 2008 the public prosecutor reopened the investigation and ordered further enquiries. On 20 October 2008 the head of the investigation unit met with the platoon leaders of the Munich riot control unit and other division heads of the Munich police to discuss the investigation. Neither the public prosecutor nor the applicants ’ representative attended the internal police meeting. Subsequently, a further twenty-two witnesses were interviewed including fourteen platoon leaders, squad leaders and video officers of the deployed police units. The individual squad members of the three squads of the Munich riot control unit were not interviewed. The applicants had requested that they be interviewed, as the evidence had suggested that the alleged perpetrators had belonged to one of these three squads. 20. The investigating police unit was also provided with video surveillance recorded by the 23 rd platoon of the 6 th Dachau public - order support force battalion. Upon the request of the applicants to secure the entire video material of the police operation, and not only the already submitted video excerpts, it was established that the original video tapes and possible digital copies had already been deleted and that only the excerpts were still available. 21. On 4 August 2009 the public prosecutor discontinued the investigation again. In a detailed fifteen- page decision he first summarised the investigative measures taken, referring in particular to the interviews of several witnesses, including police officers and the alleged victims, the review of video material from the police and from the internet, the assessment of the applicants ’ written observations and of the submitted documents, inter alia, medical certificates, as well as gathered information and reports on past events and applicable guidelines. After assessing all the available evidence, the public prosecutor concluded that the enquiries had shown that several supporters had aggressively approached, insulted and provoked the deployed police officers and that therefore a situation had existed in which the officers could have been justified in using their truncheons. Besides this general conclusion he held that the applicants had neither been able to identify a particular suspect nor to determine whether the suspected police officers had been male or female and that the investigation had not produced other persons who had witnessed the alleged acts against the applicants. Furthermore, he outlined in detail certain “considerable discrepancies” in the witness statements of the first applicant and referred to “unspecific” statements of the second applicant. Consequently, according to the public prosecutor, there was insufficient evidence to establish criminal conduct by specific police officers to the detriment of both applicants. He concluded that the investigation had to be discontinued again, since the considerable additional investigative measures had not revealed disproportionate conduct on the part of individual police officers, in particular truncheon strikes against innocent bystanders, which would require criminal prosecution of the respective officers. 22. On 20 August 2009 the applicants appealed and pointed out that the members of the deployed squads had still not been questioned and that the inspected videos were fragmentary, but nonetheless contradicted certain parts of the statements made by the squad leaders. 23. On 3 February 2011 the Munich general public prosecutor confirmed the decision of the public prosecutor ’ s office of 4 August 2009 to discontinue the investigation. The instructions on available legal remedies attached to the decision informed the applicants that they could request a judicial decision in the framework of proceedings to force criminal proceedings ( Klageerzwingungsverfahren ). C. Court proceedings 24. On 19 September 2011 the Munich Court of Appeal declared the applicants ’ application to force further enquiries inadmissible. The court interpreted the applicants ’ request as an application to force criminal proceedings ( Klageerzwingungsantrag ) and held that these proceedings were only admissible if the prosecution of one or more identified accused had been requested. An application to force criminal proceedings against an unidentified accused had to be declared inadmissible, since the proceedings were not supposed to identify the accused or replace investigations. Only in a case where a public prosecutor ’ s office had entirely refrained from investigating a crime had a court the possibility to order an investigation. Under Article 173 § 3 of the Code of Criminal Procedure ( Strafprozessordnung – hereinafter “the CCP”; see paragraph 37 below ) a court was only allowed to conduct minor enquiries to fill in remaining gaps in an investigation. Moreover, the applicants had not submitted specific facts or evidence that would have allowed the court to identify an accused. 25. On 25 October 2011 the applicants lodged a constitutional complaint, relying on Articles 2 § 2, 19 § 4 and 103 § 1 of the German Basic Law ( Grundgesetz ) (see paragraphs 29-31 below). Besides referring to articles of the Basic Law, the applicants also referred in their complaint to Articles 2, 3, and 13 of the Convention. In essence they complained that the investigation had not been effective and that the Court of Appeal had not evaluated the effectiveness of the investigation. 26. On 23 March 2015 the Federal Constitutional Court (hereinafter “ the Constitutional Court ”) refused, in a reasoned decision (2 BvR 1304/12), to admit the applicants ’ constitutional complaint. The court held that the investigations had been conducted diligently, but had not established sufficient suspicion of criminal conduct on the part of specific police officers. Moreover, the remaining gaps and factual uncertainties could not be attributed to omissions in the investigation. The court also found that it had not been necessary to question all the squad members who had possibly been involved. In its decision the Constitutional Court referred to the Court ’ s case-law concerning the procedural obligation of Article 2 of the Convention and, in particular, to the cases of McCann and Others v. the United Kingdom (27 September 1995, Series A no. 324) and Grams v. Germany ((dec.), no. 33677/96, ECHR 1999 ‑ VII). The court also emphasised that the public prosecutor ’ s office had been the responsible authority for the investigation and thereby “ master of the proceedings ” ( Herr des Verfahrens ). D. Other investigations 27. During the investigation the applicants also filed criminal complaints in respect of assistance given in an official capacity in avoiding prosecution or punishment ( Strafvereitelung im Amt ) and suppression of evidence ( Beweismittelunterdrückung ). The applicants alleged that several relevant parts of the video material, showing disproportionate police violence, had been deleted. The investigation against the five police officers was discontinued by the Munich public prosecutor ’ s office. 28. A subsequent appeal before the Munich general public prosecutor was to no avail. | This case concerned the complaint by two football supporters of having been ill-treated by the police following a match and of the inadequacy of the ensuing investigation. |
730 | Exposure to environmental hazards | I. THE CIRCUMSTANCES OF THE CASE 5. The applicants ’ names, dates of birth and places of residence may be found in the Annex. A. Background to the case 6. From the 1950s/60s to early 2000, the applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 were full - time employees at the Malta Drydocks Corporation (the MDC), a state-owned enterprise (1968-2003). The applicants in application no. 62338/11 are the wife and children of Mr Attard, who also worked at Malta Drydocks during the same period ( having started in 1959) but left in 1974 to take up managerial duties with the Malta Trade Fair Corporation, where he was no longer exposed to asbestos. 7. According to the applicants, the applicants in applications nos. 60908 /11, 62110/11, 62129/11 and 62312 /11 and Mr Attard had been constantly and intensively exposed to asbestos during their employment. Asbestos in its various forms was one of the substances kept in stock in Malta Drydocks ’ storerooms and ships incorporating asbestos as part of their structure regularly entered the docks (or ship repair yard) and were repaired there by workers. Repairs included breaking apart the asbestos casing that was used for insulation purposes, thereby releasing the particles into the surrounding air. Once a machine was repaired, it had to be reinsulated using asbestos retrieved from the store -rooms. Such repairs were carried out both on the ships themselves and in the MDC ’ s workshops. 8. The applicants contended that asbestos particles would settle on the workers ’ clothing and be carried around in this way, with the result that it could also affect the lives of their family members, creating further anguish and affecting their private and family life. 9. In the 1960s, Malta became a member of the International Labour Organisation (“ILO”) ( see “ Relevant domestic law and international standards ” below ) and of the World Health Organisation (“WHO”), both organisations having been raising awareness regarding the dangers of asbestos since the 1950s. At the time, however, the employees of MDC had been neither informed about nor protected from the dangers of asbestos in any way. The Government disagreed with the applicants ’ assertion that international organisations had raised awareness of the dangers of asbestos in the 1960s, noting that the ILO Asbestos Convention had been concluded in 1986 and that the WHO had issued its guidelines much later than the 1960s. 10. The first publicly available – though not publicly disseminated – information concerning the fatal consequences of asbestos at MDC appears to be the judicial acts and judgment relating to a lawsuit brought in the names of Mary Pellicano proprio et nomine vs Francis Spiteri nomine, concerning the deceased Paul Pellicano (erroneously referred to by the parties as Joseph Pellicano ) who died from asbestosis in 1979. In that case, in a judgment of 30 August 1989, the then Commercial Court established MDC ’ s responsibility for the death of Paul Pellicano and awarded (in a separate decision of 27 June 1990) damages under Maltese law consisting of lucrum cessans and damnum emergens (see also “ Relevant domestic law ” below ). 11. No action was taken following that judgment save that employees were assured that adequate ventilation and the wearing of fabric masks would protect them from asbestos. 12. Mr Attard died in 2006, aged sixty-one, as a result of a malignant cancer linked to exposure to asbestos (mesothelioma). Following the death of a number of their colleagues, the applicants in applications nos. 60908/ 11, 62110/11, 62129/11 and 62312 /11 underwent medical tests, which were performed again in 2012 in the context of proceedings before the Court. With the exception of the case of Mr Dyer, most of the X -rays revealed bilateral pleural plaques ( extensive in some cases) compatible with asbestos exposure. The X -rays of some of the applicants also revealed pleural thickening, reticulo -nodular interstitial parenchymal texture in the lungs, and in some cases also pulmonary fibrosis, all of which are consistent with asbestosis. The results suggested that there was a strong probability of the presence of asbestos fibres in their stomach lining, as well as in other digestive organs. Moreover, apart from the physical difficulties such as exercise intolerance that were mainly related to respiratory problems, the presence of asbestos in their bodies made them prone to malignant mesothelioma, as was the case with Mr Attard, abovementioned. From the medical data it was also apparent that the applicants had no pleural effusions and that their lungs were clear, with no filtrates or nodules, and their hearts, hila and upper mediastina were also normal. Most of the applicants are non ‑ smokers. 13. In particular, Mr John Mary Abela has been confined to bed for years as a result of his acute respiratory problems and can only breathe via oxygen cylinders that further reduce his mobility. Mr Dyer ’ s medical results did not show evidence of asbestos - related disease. B. Constitutional redress proceedings 1. The applicants in applications nos. 60908/11, 62110/11, 62129/11 and 62312/11 14. On 7 May 2009 these applicants instituted separate constitutional redress proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention in that the State had failed to protect them from unnecessary risks to their health, which also constituted inhuman treatment and an interference with their private and family life. They asked the court to quantify a fair amount of compensation for the breach of the aforementioned rights, to liquidate that amount, and to order that this pecuniary redress be paid individually to the applicants (“ Tikwantifika kumpens xieraq bħala rimedju għal ksur tad- drittijiet fuq indikati jew mil- liema minnhom, tillikwida dan l- ammont, u tordna li dan ir-rimedju pekunjarju jithallas individwalment lir-rikorenti ”). 15. In reply to the Government ’ s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings the applicants in question maintained that under Maltese law the ordinary civil remedies available did not apply to non-pecuniary damage (known in the domestic system as “ moral damage ” ), but solely to pecuniary damage; they claimed that these types of damage were independent of each other. 16. In four separate but almost identical judgments of 30 November 2010 the first-instance constitutional jurisdiction – namely, the Civil Court (First Hall) in its constitutional jurisdiction – declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii thereby in effect dismissing the applications on the grounds of non-exhaustion of ordinary domestic remedies. That court held that the applicants should have instituted a civil action for damages arising out of tort or contractual liability. It considered that according to the Court ’ s case-law, namely Zavoloka v. Latvia (no. 58447/00, § 40, 7 July 2009), there was no general or absolute obligation on States to pay compensation for non-pecuniary damage in such cases. 17. By four judgments of 11 April 2011 the Constitutional Court upheld the first-instance decisions. It considered that the Government, as an employer, could be sued under civil law for their failings. It held in effect that the fact that such failings were also of a constitutional nature did not in itself mean that they could not be pursued through ordinary civil proceedings. It also held that a person could not allow the time within which to bring an ordinary civil action to expire and then resort to constitutional proceedings as a remedy in extremis. The court considered that constitutional redress proceedings could be instituted only after the applicants had instituted civil proceedings and if, after a final judgment, they still felt that the breaches of their rights had not been adequately redressed. It held that given that neither the Convention nor national law provided for compensation for non-pecuniary damage in such cases, the ordinary remedy would have been effective. In any event, according to the court, in their constitutional application, the applicants made no specific mention of non-pecuniary or moral damage, having claimed compensation for pecuniary damage only. 2. The applicants in application no. 62388/11 18. On 19 April 2010 these applicants, who are the heirs of the deceased Mr Attard, also instituted proceedings, complaining of a violation of Articles 2, 3 and 8 of the Convention. 19. In reply to the Government ’ s objection of non-exhaustion of ordinary domestic remedies in the domestic proceedings, the applicants submitted that under Maltese law the ordinary civil remedies available did not provide for non-pecuniary damage but only for pecuniary damage; they claimed that these types of damage were independent of each other. 20. By a judgment of 30 September 2010 the Civil Court (First Hall) in its constitutional jurisdiction declined to exercise its powers under the Constitution and under the European Convention Act and discharged the defendants ab observantia iudicii, thereby in effect dismissing the claims of the applicants on the grounds of non-exhaustion of ordinary remedies. In its analysis of the principles governing the exercise of the above-mentioned powers under the Constitution and the European Convention Act, the court noted, inter alia, that the failure to pursue ordinary remedies by an applicant was not in itself a sufficient reason for a court of constitutional jurisdiction to decline to exercise its powers if it could be shown that the ordinary means could not provide a complete remedy. It also held that the decision to decline or otherwise to exercise such powers was to be exercised with prudence, so that where it appears that there is a serious violation of fundamental human rights or even where there is likely to be the violation of such rights, then the court should lean towards exercising its powers. Nevertheless, it considered that what the applicants were ultimately requesting was a sum of money by way of damages. Given that ordinary remedies under the Civil Code could have resulted in an award of monetary compensation, the applicants should have pursued those remedies before instituting constitutional redress proceedings. 21. In a judgment of 11 April 2011 the Constitutional Court upheld the first-instance decision for substantially the same reason indicated in paragraph 17 above. | This case concerned ship-yard repair workers who were exposed to asbestos for a number of decades beginning in the 1950s to the early 2000s which led to them suffering from asbestos related conditions. The applicants complained in particular about their or their deceased relative’s exposure to asbestos and the Maltese Government’s failure to protect them from its fatal consequences. |
1,000 | Protection of property (Article 1 of Protocol No. 1) | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant was born in 1955 and lives in Stutensee. A. The applicant’s land 11. Under the German Federal Hunting Act ( Bundesjagdgesetz ), owners of hunting grounds with a surface area of less than 75 hectares are de jure members of a hunting association ( Jagdgenossenschaft ), while owners of larger plots of land manage their own hunting district. The applicant owns two landholdings in Rhineland-Palatinate of less than 75 hectares each, which he inherited in 1993 from his late mother. He is thus a de jure member of a hunting association, in this case the hunting association of the municipality of Langsur. B. The applicant’s claims before the administrative authorities and courts 12. On 14 February 2003 the applicant, who is opposed to hunting on ethical grounds, filed a request with the hunting authority seeking to terminate his membership of the hunting association. The authority rejected his request on the grounds that his membership was prescribed by law and that there was no provision for the termination of membership. 13. The applicant brought proceedings before the Trier Administrative Court. Relying in particular on the Court’s judgment in the case of Chassagnou and Others v. France ([GC], nos. 25088/94, 28331/95 and 28443/95, ECHR 1999 ‑ III), he requested the Administrative Court to find it established that he was not a member of the hunting association of the municipality of Langsur. 14. On 14 January 2004 the Administrative Court rejected the applicant’s request. It considered that the Federal Hunting Act did not violate the applicant’s rights. With regard to the Chassagnou judgment, the Administrative Court took the view that the situation in Germany differed from that in France. It observed, in particular, that German owners of hunting grounds were able, by virtue of their membership of the hunting association, to influence the decision-making process as to how the relevant hunting rights should be exercised. Furthermore, they had the right to receive a share of the profits derived from the exercise of those hunting rights. All owners of plots which were too small to allow proper management of hunting rights joined a hunting association. The court further considered that the hunting associations not only served the leisure interests of those who exercised the hunting rights, but also imposed certain specific obligations on them which served the general interest, in particular a duty to manage game stocks with the aim of maintaining varied and healthy game populations and a duty to prevent damage caused by wild game. They were further obliged to comply with specific quotas set by the authorities for the hunting of game. These duties applied in the same way to the owners of hunting grounds of more than 75 hectares, notwithstanding the fact that these bigger plots were not grouped together in common hunting districts. 15. On 13 July 2004 and 14 April 2005 the Rhineland-Palatinate Administrative Court of Appeal and the Federal Administrative Court dismissed the appeals lodged by the applicant, on the same grounds as the Administrative Court. C. The decision of the Federal Constitutional Court 16. On 13 December 2006 the Federal Constitutional Court (1 BvR 2084/05) refused to admit a constitutional complaint by the applicant for adjudication. It noted at the outset that the provisions of the Federal Hunting Act did not violate the applicant’s right to the peaceful enjoyment of his property, but defined and limited the exercise of that right in a proportionate manner. The relevant provisions pursued legitimate aims, were necessary and did not impose an excessive burden on landowners. 17. When defining the content and limits of property rights, the legislature had to weigh the landowners’ legitimate interests against the general interest. It had, in particular, to respect the principles of proportionality and equal treatment. The limitations imposed on the exercise of property rights must not infringe the core area of the protected right. The margin of appreciation allowed to the legislature depended on the specific context; the more important the social considerations, the wider the margin of appreciation. 18. Applying these principles to the instant case, the Federal Constitutional Court considered that the applicant’s compulsory membership of a hunting association did not violate his property rights. The core area of that right had not been infringed. The Federal Hunting Act pursued the legitimate aims of preserving game in a manner adapted to the rural and cultural environment and ensuring healthy and varied wildlife, aims encompassed in the notion of “management and protection of game stocks” ( Hege ). Under the Federal Hunting Act, gamekeeping was a means not only of preventing damage caused by wildlife, but also of avoiding any impediment to the use of the land for agriculture, forestry and fishing. These aims served the general interest. 19. Compulsory membership of a hunting association was an appropriate and necessary means of achieving those aims. Referring to paragraph 79 of the Chassagnou judgment, cited above, the Constitutional Court considered that the European Court of Human Rights had acknowledged that it was undoubtedly in the general interest to avoid unregulated hunting and encourage the rational management of game stocks. Compulsory membership of a hunting association was also a proportionate means. The impact on property rights was not particularly serious and did not outweigh the general interest in the rational management of game stocks. Furthermore, the Federal Hunting Act conferred on every member of the hunting association the right to participate in the decision ‑ making process within the association and to receive a share of the profits derived from the leasing of the hunting rights. 20. The Constitutional Court further considered that there had been no violation of the applicant’s right to freedom of conscience. It noted that in paragraph 114 of the Chassagnou judgment the European Court of Human Rights had accepted that the convictions of the applicants in that case attained a certain level of cogency, cohesion and importance and were therefore worthy of respect in a democratic society. The Constitutional Court left open the question whether this assessment was correct in Mr Herrmann’s case. It agreed, however, to take this assumption as a starting point as it considered that in any case there had been no violation of Article 4 of the Basic Law (see paragraph 25 below). It was doubtful whether there had been any interference with the applicant’s right to freedom of conscience. Even assuming that there had been, it was, in any event, not of a serious nature. As the applicant was not forced to participate in hunting himself and did not have to take any decision in that respect, the court considered that he had not been placed in a position of conflict of conscience. It further observed that the right to freedom of conscience did not encompass a right to have the entire legal order made subject to one’s own ethical standards. If the legal order distributed the right to make use of a certain property among several stakeholders, the owner’s conscience did not necessarily outweigh the other stakeholders’ constitutional rights. If the applicant’s landholding – and those of other owners who were opposed to hunting – were taken out of the common hunting districts because of the landowners’ convictions, the whole system of property ownership and management of game stocks would be jeopardised. The right to freedom of conscience did not outweigh the general interest in the instant case. 21. According to the Federal Constitutional Court, the applicant’s complaint did not come within the scope of the right to freedom of association because German hunting associations were of a public nature. They were vested with administrative, rule-making and disciplinary prerogatives and remained integrated within State structures. There was thus no doubt that the association was not characterised as “public” simply in order to remove it from the scope of Article 11 of the Convention. 22. The Federal Constitutional Court further considered that the applicant’s right to equal treatment had not been breached. The administrative courts had put forward relevant reasons for drawing a distinction between the owners of landholdings of less than 75 hectares and those of more than 75 hectares (see paragraph 11 above). Contrary to the situation in France, which had been examined by the Court in the Chassagnou judgment, the Federal Hunting Act applied to the whole of Germany and was binding on all landowners. The owners of land of more than 75 hectares had the same duties with regard to gamekeeping as those who belonged to hunting associations. 23. Finally, the Federal Constitutional Court observed that the administrative courts had considered the Chassagnou judgment and had emphasised the differences between German and French law as applicable at the relevant time. D. The use of the applicant’s land 24. Having been invited by the President of the Grand Chamber to provide the Court with additional information regarding the actual use of the applicant’s land, the Government submitted a declaration by the farmer who had taken out a lease on the agricultural land to which the applicant’s plots belonged. The farmer submitted that she regularly used the land to raise cattle destined for slaughter. This was confirmed in a written statement by the mayor of the municipality of Langsur. The applicant submitted that he had visited the plots several times over the previous years without ever seeing any cattle. He had never given permission for his land to be used in that way and would take legal action against any possible abuse. | This case concerned a landowner’s complaint about being forced to accept hunting on his premises, even though he was morally opposed to hunting. In his view such obligation amounted in particular to a violation of his right to the peaceful enjoyment of his possessions. |
756 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant company is a legal entity registered in Vilnius. 6. In 1994 the Government adopted a resolution establishing the Development Plan for the Curonian Spit National Park ( hereafter “the development plan” ). The main objectives of the development plan were published in the Official Gazette ( Valstybės žinios ) ( see paragraph 53 below). The development plan explicitly indicated that the buildings with a former military objective, situated in the adjacent dunes, had to be removed ( nukeliami ) and the natural environment fully restored. 7. In 1998 the Government decided to privatise the former Soviet (later the – Russian Federation) military buildings, without the land, in Juodkrantė, the Neringa Municipality, within the Curonian Spit National Park. There were two military barracks, a canteen, a store house and two sheds. 8. In 1999 the State Property Fund carried out a public auction, at which the applicant company was the only participant and purchased the buildings for 226,000 Lithuanian litai (LTL, approximately 65,454 euros (EUR)). The purchase agreement, which was concluded in February 2000, indicated that the applicant company had to lease the land assigned to the buildings ( įsipareigoja išsinuomoti šiam objektui priskirtą žemės sklypą ). A. Circumstances surrounding the detailed plan of the area 9. In September 2001 the Neringa Municipality decided to prepare a detailed plan of the area where the buildings were sited. The purpose of the plan was to designate a plot of land near the existing buildings, providing an opportunity to renovate the buildings or to build new recreational buildings. 10. In August 2002 the authorities in charge of the Curonian Spit National Park decided that renovation of the buildings had to meet the requirements applicable to the whole area. The buildings had to be integrated in the landscape; as they were sited in the forest, the purpose of the use of the land had to be changed. 11. In September 2002 the Klaipėda Region department of environmental protection decided that the purpose of the use of the land, on account of its specific location, could only be changed if the projects were approved by those managing protected areas or with the approval of the Ministry of Environment. In August 2003 the same department rejected a detailed plan submitted by the applicant company, seeking to amend the purpose of the land so that it became a recreational area. 12. The applicant company instituted court proceedings, urging the court to declare unlawful the authorities ’ rejection of the detailed plan proposed by the applicant company ( see paragraph 11 above) and to oblige them to accept it. 13. The applicant company ’ s claim was dismissed on 23 October 2003 by the Klaipėda Regional Administrative Court and on 27 January 2004 by the Supreme Administrative Court. The courts held that in accordance with domestic law there was no possibility to build new recreational buildings in the Curonian Spit National Park (see paragraph 53 below). The courts thus held that the applicant company ’ s detailed plan was contrary to the development plan. B. Circumstances surrounding the land assigned to the buildings 14. In January 2004 the applicant company asked the authorities to conclude a lease agreement in respect of the land assigned to the buildings. The authorities replied that the applicant company had to provide a plan of the land. However, as there was no detailed plan of the area, the land could not be leased. The applicant company was also obliged to pay the land tax. 15. The applicant company instituted court proceedings and complained that it had to pay the land tax but the Vilnius Regional Administrative Court on 30 April 2004 and the Supreme Administrative Court on 17 September 2004 held that it had to pay the land tax because it had been using the land in question. C. The procedure to include the land assigned to the applicant company ’ s buildings in the recreational zone 16. In February 2006 the applicant company asked the authorities to include the land in question in the landscape management recreational zone. In March, the Protected Areas Service replied that the development plan of 1994 indicated that the buildings had to be demolished. It said that it would formulate provisions in the explanatory report regarding the possibility to compensate the applicant company for the buildings. In this case, the applicant company would be able to acquire other buildings owned by the authorities. 17. In November 2011 the applicant company proposed that the land under its buildings be included in the recreational zone and that a compensation mechanism be determined for the buildings if the area had to be redeveloped. In December 2011 the authorities replied that the redevelopment of the area had been determined in 1994 and that they could not agree with the applicant company ’ s proposals. The authorities indicated that any decision regarding the applicant company ’ s buildings had to be taken by the Government. 18. In January 2012 the applicant company complained about the refusal of its proposal ( see paragraph 17 above) to the State Territorial Planning and Construction Inspectorate. It claimed that it had legitimate expectations that it would be able to use its possessions in an appropriate manner, namely that it would be allowed to reconstruct the buildings without increasing their height. In February 2012 the Inspectorate replied that when approving the Curonian Spit National Park Management Plan (hereafter “the Management Plan”), a decision on a compensation mechanism and time-limits would also have to be taken. 19. In April 2012 the applicant company examined a draft of the Management Plan and found that its buildings were indicated as objects to be redeveloped ( rekultivuojami objektai ) but that that decision had not been explained. The applicant company asked the authorities to amend the draft so that it included the issue of compensation for the buildings or included the buildings in the landscape management recreational zone. 20. In May 2012 the Ministry of Environment and the Protected Areas Service replied that they had set up a working group to determine a compensation mechanism for the property that had to be expropriated. 21. In May 2012 the applicant company asked the authorities to inform it about the conclusions of the working group. In June 2012 the authorities replied that the working group had to be set up before 29 June 2012. 22. The working group was set on 20 July 2012 and had to provide its proposals before 19 November 2012. D. The procedure regarding planning permission for major repair work of the canteen and subsequent court proceedings 23. In February 2010 the applicant company asked the authorities for planning permission to carry out major renovation work on one of the buildings, namely the canteen. The authorities replied that they could not issue planning permission and that the applicant company had to provide them with the lease agreement in respect of the land assigned to the buildings. Only after such agreement was provided, the authorities would examine the applicant company ’ s request. 24. The applicant company lodged a complaint with the domestic courts against the authorities ’ refusal to issue planning permission for renovation of the canteen. On 30 August 2010 the Klaipėda Regional Administrative Court allowed the claim, holding that the applicant company had been paying the land tax, which was evidence that it had been using the plot of land. 25. On 9 May 2011 the Supreme Administrative Court allowed an appeal lodged by the authorities. It held that the applicant company had not provided any information proving that it was the owner of the plot of land, so the authorities had not been obliged to issue planning permission for renovation of the canteen. The applicant company applied for the reopening of the proceedings. Its request was refused by the Supreme Administrative Court in January 2012. E. Approval of the Management Plan and court proceedings regarding the Management Plan 26. On 6 June 2012 the Government approved the Management Plan by Resolution No. 702 (see paragraph 54 below) and asked the Ministry of Environment to set up a working group to assess the legal grounds for expropriating property for public needs ( dėl darbo grupės teisinėms prielaidoms paimti turtą visuomenės poreikiams sudarymo ). The working group was set up on 20 July 2012 and its proposals were to be submitted by 19 November 2012. The Management Plan included the reserve land in Juodkrantė, indicating that its purpose was to compensate for the possible losses incurred by lawful owners of buildings that had been earmarked for demolition. 27. On 4 July 2012 the applicant company lodged a complaint with the Vilnius Regional Administrative Court, urging it to revoke the part of the Government Resolution where it had been decided that the buildings at 21 Miško street (the location of the applicant company ’ s buildings) would be demolished and to order the authorities to amend the Management Plan. The applicant company argued that the issue of compensation and the time-limits for the demolition of property had not even been mentioned in the Management Plan. It also argued that clear indications on compensation for the buildings and for the land tax were needed. 28. On 23 July 2012 the Vilnius Regional Administrative Court refused to examine the claim. The reasons were provided in two short paragraphs, which mainly reiterated the provisions of domestic law (see paragraph 62 below). The applicant company had complained about the lawfulness of the Government Resolution. The court considered that issues as to whether acts adopted by the Government were in accordance with the Constitution or laws fell within the jurisdiction of the Constitutional Court. It stated that it was not within the area of competence of the administrative courts to examine the lawfulness of the activities of, inter alia, the Government (as a collegial institution). As regards an amendment to the Management Plan, the court stated that that was linked to the first part of the claim and thus would not have any legal consequences on the applicant company. 29. In August 2012 the applicant company lodged a separate complaint and asked the Supreme Administrative Court to examine the case on the merits. It claimed that the first-instance court had misinterpreted the provisions of the Law on Administrative Proceedings, and thus limited the applicant company ’ s right of access to a court. The applicant company thought that when the Government had approved the Management Plan, it had been implementing the function of public administration, and that that document had had a direct influence on the applicant company ’ s rights and obligations, and was thus an individual legal act that had to be examined before the administrative courts. On 28 November 2012 the Supreme Administrative Court upheld the decision of the Vilnius Regional Administrative Court of 23 July 2012. It held that the applicant company had questioned the lawfulness of both the Management Plan and the development plan. The Supreme Administrative Court held that when the Government had approved the Management Plan, it had been carrying out the function of State power. Moreover, the court had already ruled on the issue of the attribution of the Management Plan to the jurisdiction of the administrative courts and had decided that it had not been attributable to those courts (see paragraph 79 below). The court indicated that a legal act could consist of textual and graphic information (tables, drawings, schemes, plans, symbols, emblems). The Constitutional Court had already held that all parts of a legal act were interrelated and were of equal legal effect (see paragraph 77 below). The court further held that the present case was in substance identical to cases already examined by it, and that there were no grounds to reach a different conclusion on the nature of the Management Plan. The court explained that the applicant company could only raise the issue of the lawfulness of the Government Resolution in the context of an individual case regarding violation of its specific rights (by complaining against an individual legal act, by which the Government Resolution and the decisions of the Management Plan would be implemented). It could then ask the court examining that case to refer the issue to the Constitutional Court. The applicant company ’ s request to organise the procedure to amend the Management Plan so that it included the land in question in the landscape management recreational zone was dismissed because the applicant company had failed to address the authorities or the courts after the approval of the Management Plan. 30. The applicant company then applied for the reopening of the proceedings. On 3 April 2013 the Supreme Administrative Court rejected its application on the grounds that the applicant company ’ s claims had been dismissed for being outside the administrative court ’ s jurisdiction and the proceedings could only be reopened if an administrative case had been examined on the merits. F. The procedure regarding planning permission for major repair work of the applicant company ’ s buildings and subsequent court proceedings 31. In October 2011 the applicant company asked the authorities which documents were necessary for the proposed renovation work. In November 2011 the authorities replied that it was not clear from the applicant company ’ s request which building ( “ specific, not complex or non ‑ specific ” ( ypatingas, nesudėtingas ar neypatingas ), as defined in the domestic law ) it was aiming to renovate. The applicant company had indicated major repair work. The authorities stated that a detailed plan was not necessary, the location of the building to be renovated was not important and a document proving ownership of the land (see paragraph 25 above) was not necessary either. 32. In May 2013 the Neringa Municipality inspected the applicant company ’ s buildings and held that they were in a state of disrepair. It requested that the applicant company appoint a person responsible for the maintenance of the buildings before 3 June 2013, remove the damaged parts of the buildings before 1 July 2013 and renovate the buildings before 31 May 2014. 33. On 30 December 2013 the applicant company asked the authority in charge of the Curonian Spit National Park to issue planning permission to carry out major repair work in order to renovate the buildings. The same month the applicant company received a response that permission could not be issued because it would be contrary to the Management Plan of 6 June 2012 (see paragraph 26 above ). 34. The applicant company instituted court proceedings before the Vilnius Regional Administrative Court against the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013 (see paragraph 33 above). It urged the court to order the authority to issue the planning permission required for it to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage for the land tax and property tax it had paid between 2000 and 2014. 35. In the course of proceedings the applicant company submitted a draft friendly settlement agreement to be concluded by the State, proposing that the State compensate it for the removal of the buildings by providing the applicant company with lease rights to State -owned land measuring 0.7685 hectares in Neringa with construction rights. The State representative refused to agree to the proposal because it was in breach of domestic law (see paragraph 63 below). 36. On 14 November 2016 the Vilnius Regional Administrative Court held that the refusal of the authority in charge of the Curonian Spit National Park to issue the planning permission required to carry out major repair work was in accordance with the relevant domestic law. The applicant company also asked the court to refer the question of whether the Management Plan was in accordance with the Constitution to the Constitutional Court. The court acknowledged that the authority ’ s decision had lacked a seal of approval but held that that shortcoming could not be regarded as grounds to overrule the decision. The court also held that the authority had not acted unlawfully, so there were no grounds for awarding the applicant company pecuniary damages. Moreover, domestic law did not require that the Management Plan contain a compensation mechanism for the buildings to be “ removed ”. However, the Management Plan in question indicated that an area in Juodkrantė had been designated to compensate for the losses incurred by the lawful owners of the buildings to be removed. Thus the Management Plan provided for the opportunity to compensate for possible losses. As regards the referral to the Constitutional Court, the court held that the applicant company had mistakenly stated that the decision to remove the buildings had only been indicated in the Management Plan. The court stated that it was a commonly known fact that the applicant company ’ s buildings had been earmarked for removal at the time the purchase agreement had been concluded, and the applicant company, as a diligent legal entity, should have assessed the legal status of the buildings and the restrictions on their use. The legitimate expectations of the applicant company had not been breached as it had not proved the need to refer the issue to the Constitutional Court. The court also pointed out that the buildings had not been taken from the applicant company for the needs of society (see paragraph 45 below). However, when using them the applicant company had to follow the legal regulations, which established that construction in the area in question was not allowed and that it was attempting to protect its rights in the wrong way. The decision that had had legal consequences for the applicant company had been the decision to privatise the buildings and to sell them to the applicant company. 37. In December 2016 the applicant company appealed and asked the Supreme Administrative Court to refer the matter to the Constitutional Court; to overrule the decision of the authority in charge of the Curonian Spit National Park of 30 December 2013; to order the authority to issue the applicant company with the planning permission required to carry out major repair work and to award it EUR 48,489 in respect of pecuniary damage. The proceedings are still ongoing. G. Amendment of the Management Plan and related court proceedings 38. On 15 April 2015 the Government adopted Resolution No. 389 approving the start of the amendment of the Management Plan. One of the purposes set out in the resolution was to combine the interests of the State and municipalities with those of the relevant natural and legal persons. 39. In June 2016 the applicant company submitted its proposals, namely that the area in which its buildings were located be included in the landscape management zone and that the buildings there should not exceed one storey with an attic. If the proposal to redevelop the land were maintained, the applicant company wanted a clear decision on time-limits for redevelopment and a compensation mechanism. 40. On 20 June 2016 the Protected Areas Service indicated that the land on which the applicant company ’ s buildings were sited was not affected by the amendment of the Management Plan. It also indicated that the reply could be appealed against to the Supreme Administrative Disputes Commission (“the commission”) or to the Vilnius Regional Administrative Court in one month from its reception. 41. In July 2016 the applicant company lodged a complaint with the commission about the reply of the Protected Areas Service ( see paragraph 40 above). The applicant company stated that it had paid EUR 41,887 in land tax and EUR 22,795 in property tax between 2000 and 2014. It also stated that although the Management Plan had entered into force in 2012, it had not been proven that removing the buildings was necessary in the interests of society. There had also been no indications about the exact time-limits and procedure for the removal of the buildings. The applicant company thus asked the commission to overrule the decision of the Protected Areas Service of 20 June 2016 and to order it to amend the Management Plan in accordance with the applicant company ’ s proposals. 42. In August 2016 the commission closed the case, stating that the issue was not within its competence. The applicant company appealed against that decision, claiming that it had been formal and lacked reasoning, and that the commission had ignored the fact that the Protected Areas Service ’ s reply of 20 June 2016 had indicated that it was amenable to appeal before the administrative courts or the commission (see paragraph 40 above). 43. On 15 December 2016 the Vilnius Regional Administrative Court dismissed the applicant company ’ s appeal. It held that the applicant company had been represented by professional lawyers and the mere fact that the Protected Areas Service had erroneously indicated that its decisions were amenable to appeal did not discharge the applicant company of the obligation to follow the appeal procedure as laid down in domestic law (see paragraph 50 below). The court held that the applicant company had to address the State Territorial Planning and Construction Inspectorate with its complaint. 44. In January 2017 the applicant company appealed before the Supreme Administrative Court. The proceedings are still ongoing. | This case concerned the applicant company’s allegation of unlawful and unreasonable restriction of its property rights, following its purchase of privatised former military buildings situated in a protected area. In particular, the company alleged that it had been denied the opportunity to repair and renovate its premises, and that despite its buildings being earmarked for demolition, no compensation had been made available, and no time-limits had been set. |
936 | Concurrent judicial functions in the same case | I. THE CIRCUMSTANCES OF THE CASE 7. Procola is a dairy constituted as an agricultural association under Luxembourg law. Its registered office is at Ingeldorf. A. The origins of the case 8. Following the introduction of the "milk quota" system in the member States of the European Community by EEC Regulations Nos. 856/84 and 857/84 of 31 March 1984, Luxembourg adopted, in a grand-ducal regulation of 3 October 1984, the provisions incorporating the Community rules into domestic law. A number of ministerial orders were issued on 10 October 1984 allocating reference quantities for milk purchases (i.e. the quantities in excess of which an additional levy would be payable) to the four milk purchasers in the Grand Duchy, that is to say the dairies purchasing milk from producers - including the applicant association; the quantities were based on the figures for milk collected in 1981. 9. The applicant association and two other milk purchasers appealed to the Judicial Committee of the Conseil d'Etat against the decisions fixing the reference quantities. In accordance with Article 177 of the Treaty establishing the European Economic Community ("the EEC treaty"), that court referred a number of questions to the Court of Justice of the European Communities ("the Court of Justice") for a preliminary ruling, which was given in a judgment of 25 November 1986. 10. In the light of the answers given by the Court of Justice, the Conseil d'Etat held, in a judgment of 26 February 1987, that the choice of 1981 as the reference year had led to discrimination between purchasers, contrary to Article 40 para. 3 of the EEC treaty. The impugned decisions were accordingly set aside and the case was referred to the Minister of State for Agriculture for a fairer apportionment of the reference quantities among the four dairies in Luxembourg by means of a grand-ducal regulation. 11. On 27 May 1987 the Minister of State submitted a new draft grand-ducal regulation under which the reference quantities were to be allocated to the four milk purchasers on the basis of the milk deliveries made to them in 1983. In order to meet Luxembourg 's obligations under Community law, it was proposed in the draft regulation to make the new reference quantity system applicable not only in the future but also retrospectively to previous milk-production years, with effect from April 1984. The draft regulation was submitted to the Conseil d'Etat for an opinion. 12. In a letter of 24 June 1987 the President of the Conseil d'Etat drew the Prime Minister's attention to the fact that such rules could be given retrospective effect only through legislation and not by means of a regulation. 13. At the close of its deliberations of 2 July 1987 the Conseil d'Etat proposed certain amendments and a single-clause bill giving the future regulation retrospective effect from 2 April 1984, the date on which the milk-quota system had come into force in the European Community countries. 14. With certain amendments, the Minister of State's draft regulation of 27 May 1987 became the Grand-Ducal Regulation of 7 July 1987 and the bill drafted by the Conseil d'Etat on 2 July 1987 became the Act of 27 August 1987, which made this regulation applicable with retrospective effect to "the twelve-month periods of application of the additional levy on milk commencing respectively on 2 April 1984, 1 April 1985 and 1 April 1986". For these periods, paragraph 2 of the single section of the Act provided: "Purchasers' reference quantities shall be reallocated on the basis of the provisions of Article 3 of the Grand-Ducal Regulation of 7 July 1987 referred to above, and the basic and supplementary individual reference quantities shall be recalculated on the basis of the relevant provisions of the same regulation." 15. On 21 September 1987 the Minister of State issued four ministerial orders fixing the applicant association's milk quantities for each of the four milk-production years between 2 April 1984 and 31 March 1988. B. The applications for judicial review lodged with the Conseil d'Etat 16. On 24 November 1987 Procola applied to the Judicial Committee of the Conseil d'Etat for judicial review of each of those four orders on the grounds that they adversely affected the association and its suppliers because its reference quantities for the milk-production years in question were too low. In its pleadings, in addition to raising a number of grounds of appeal alleging the unlawfulness of the Grand-Ducal Regulation of 7 July 1987 and breaches of several of its provisions, the applicant association criticised its retrospective application to milk-production years before the one which had begun on 1 April 1987. In the alternative, it asked the Judicial Committee to refer a number of questions to the Court of Justice for preliminary rulings, including one concerning the principle of non-retrospective application. 17. In a judgment of 6 July 1988 the Judicial Committee dismissed the applications in the following terms: "While it is true that as a general rule a statute makes provision only for the future, it is open to the legislature to give retrospective effect to a statute, in so far as this is not prohibited under the Constitution. Luxembourg was required to fill the legal vacuum created by the Judicial Committee's judgment of 26 February 1987 quashing the regulation, otherwise it would have been in breach of its binding obligations under the Treaty of Rome. Under Article 189 of that treaty, Community regulations are directly applicable. Consequently, Luxembourg was obliged to legislate on the matter of milk levies for the periods from 2 April 1984 to 31 March 1987, and only Parliament, which had the approval of the Community authorities, had the power to do so. At all events, the penalties attaching to any failure on the part of purchasers to comply with the quantities during the first, second and third periods are no higher than those which would have been payable under the previous legislation. The difference, amounting to approximately 35 million [francs], is to be borne by the State, with the agreement of the Community authorities, so that the retrospective effect of the milk quantities, far from causing the applicant association prejudice, is in fact beneficial to it. A plea of unlawfulness cannot succeed against a statute and this ground must accordingly fail ..." Four of the five members of the Judicial Committee had previously taken part in drawing up the Conseil d'Etat's opinion on the draft regulation and in framing the bill in issue. | The applicant, a dairy constituted as an agricultural association, complained in particular that the Judicial Committee of the Conseil d’État was not independent and impartial, on the ground that some of the members of the Committee who had ruled on its application for judicial review of ministerial orders fixing the milk quantities had previously given their opinion on the lawfulness of the impugned provisions. |
659 | Persons arrested or under criminal prosecution | I. THE CIRCUMSTANCES OF THE CASE 4. The applicant lives in Beira, Mozambique. 5. On 29 and 30 September and 1 October 1996, the two main evening newspapers in Sweden, Expressen and Aftonbladet, published a series of articles in which various criminal offences were ascribed to the applicant, including an assertion that he had murdered Olof Palme, the Swedish Prime Minister, in 1986. As part of the publication of this information, the newspapers also reported statements of individuals who rejected the allegations made against the applicant. Moreover, on 1 October, Expressen published an interview with the applicant, in which he denied any involvement in the alleged offences. 6. On 23 September 1998 the applicant brought a private prosecution against the newspapers through their legally responsible editors ( ansvariga utgivare ). He claimed that the editors were responsible for gross defamation, or alternatively defamation of a normal degree, under chapter 7, section 4, subsection 14 of the Freedom of the Press Act ( Tryckfrihets-förordningen ), and chapter 5, section 2 (or section 1) of the Criminal Code ( Brottsbalken ). He also joined an action for damages to the private prosecution and sought compensation for mental suffering and pecuniary damage. 7. The District Court ( tingsrätten ) of Stockholm held an oral preparation of the case on 1 February 1999 and an oral hearing on 27-28 January and 1 ‑ 3 February 2000. It heard several witnesses. In accordance with the normal procedure in cases concerning criminal liability under the Freedom of the Press Act, the court sat with three professional judges and a jury of nine members. 8. The District Court put to the jury 66 questions relating to the articles published in Expressen and 76 questions relating to the articles published in Aftonbladet. Each question referred to one or more statements or pictures published in the various articles, and the jury had to answer whether the publication of the statements or pictures constituted gross defamation or defamation of a normal degree. The jury answered all but six questions in the negative. In accordance with the applicable rules, the jury ’ s finding of “ no guilt ” was final. As regards the remaining six questions, however, the jury found that certain published statements or pictures amounted to defamation of a normal degree. The court then had to make a re-assessment of liability. The contravening statements or pictures were the following: 1. The heading on the front page stating “He is pointed out as PALME ’ S MURDERER” [“ Han pekas ut som PALMES MÖRDARE ”] together with a picture of the applicant. [ Expressen, 30 September 1996 ] 2. The text on page 6 reporting a statement made by an unnamed source within the South African intelligence service: “He is the type of person that you do not cheat unpunished. He kills without a second ’ s hesitation.” [“ Han är den typen av person som man inte lurar ostraffat. Han dödar utan en sekunds tvekan. ”] [ Aftonbladet, 29 September 1996 ] 3. The text on page 6: “In addition to Long reach, Williamson and White had several companies together, some with links to the Mafia. Among others, the GMR Group in the Seychelles which was used for laundering money from illegal activities. When Long reach was wound up, White is supposed to have started a sawmill in Beira in Mozambique. A perfect cover for other activities. Weapons and drugs are two products that have been mentioned.” [“ Vid sidan av Long reach hade Williamson och White flera andra företag ihop, en del med kopplingar till maffian. Bland annat GMR Group på Seychellerna som användes för att tvätta pengar från illegal verksamhet. När Long reach avvecklades ska White ha startat ett sågverk i Beira i Mocambique. En perfekt täckmantel för annan verksamhet. Vapen och droger är två produkter som nämnts. ”] [ Aftonbladet, 29 September 1996 ] 4. The text on page 6 : “White has been dealing with most things. – He is one of southern Africa ’ s biggest poachers, tells a source. It is to a large degree his fault that the elephants in Mozambique are all but extinct. Together with Williamson, Anthony White appropriated the ivory. ” [“ White har sysslat med det mesta. – Han är en av södra Afrikas största tjuvskyttar, berättar en källa. Det är till stor del hans skuld att elefanterna i Mocambique är så gott som utrotade. Anthony White tog tillsammans med Williamson hand om elfenbenen. ”] [ Aftonbladet, 29 September 1996] 5. The subheading on page 6 “ ... but earns more on smuggling and poaching” [“ ... men tjänar mest på smuggling och tjuvjakt ”] together with the ensuing text stating “But according to several statements, the main part of his income derives from smuggling and poaching.” [“ Men enligt flera uppgifter kommer största delen av hans inkomster från smuggling och tjuvjakt. ”] [ Aftonbladet, 30 September 1996 ] 6. The caption on page 7 “TODAY – SMUGGLER IN MOZAMBIQUE” [“ I DAG – SMUGGLARE I MOCAMBIQUE ”] under a picture of the applicant. [ Aftonbladet, 30 September 1996 ] 9. By a judgment of 24 February 2000, the District Court acquitted the editors in all respects and rejected the applicant ’ s claims for damages. It found that all six passages in issue depicted the applicant as a criminal or a person with a reprehensible lifestyle. However, given, inter alia, the great general interest in these statements in Sweden, the court found that it had been justifiable to publish the relevant statements and pictures. It further considered that the newspapers had had a reasonable basis for the published information. In the latter respect, the court had regard to how and from whom the information had been obtained and to the fact that, due to the nature of the information in question and the constraints of a fast news service, the possibility of checking the veracity of the statements had been limited. 10. The applicant appealed to the Svea Court of Appeal ( Svea hovrätt ). The appellate court held an oral hearing and heard essentially the same witnesses as the District Court. 11. On 21 February 2002 the Court of Appeal upheld the District Court ’ s judgment. It gave the following reasoning: “The Court of Appeal finds, like the District Court, that the relevant information in Expressen and Aftonbladet depicts Anthony White as a criminal and as having a reprehensible lifestyle. The information has been liable to expose him to the contempt of others and consequently, as such, constitutes defamation. The question then is whether there are grounds for excluding liability. Pursuant to chapter 7, section 4, subsection 14 of the Freedom of the Press Act, and chapter 5, section 1, subsection 2 of the Criminal Code, liability for defamation by means of printed matter is excluded if two conditions are met: 1) it would be justifiable to communicate the information, and 2) the information should be correct or the communicator should have had a reasonable basis for the assertion. If the information is correct it may as a rule be communicated even if it is deprecatory, if this is justifiable with reference to the public news interest. However, there is no general right always to speak the truth if the statements are offensive. A balance has to be struck between the protection against offensive statements and the demands of freedom of speech. In certain situations the interest of protecting someone against offensive statements has to yield to the public interest. Expressen has claimed that, on account of the public interest – the murder of the country ’ s prime minister –, it was justifiable to name and show a photograph of Anthony White in the newspaper. Aftonbladet, for its part, has asserted that, in the circumstances, it was justifiable to describe Anthony White ’ s personality and conduct. The question of who killed Olof Palme attracted at the relevant time and still attracts considerable public interest. As regards the question of whether in the circumstances it was justifiable to communicate the information, the Court of Appeal agrees with the District Court ’ s assessment that it was obviously legitimate to write about the so-called “ South Africa trail” and to present information in this regard. However, the question is whether it was justified to identify the plaintiff by name and picture in the manner employed and to publish statements to the effect that he was supposed to be guilty of large scale, serious criminality. [The responsible editors] have asserted that the publications in question were not remarkable in view of the fact that it was commonly known who Anthony White was and of which crimes he was guilty. It emerges from the information that has come to hand in the case that, within certain groups in southern Africa and Europe, it was known that Anthony White had engaged in the alleged activities. It has also been shown that books have been published in which Anthony White has been named and his service as an elite soldier in the army unit Selous Scouts, which has a dubious reputation, has been described. The information in the case reveals that Anthony White has been much better known than he has wished to admit in southern Africa and among representatives of various organisations for the protection of animals and the conservation of nature in southern Africa as well as in Europe. Anthony White does not therefore appear as an ordinary private person with regard to whom there is a particular interest of protection. In view of the above, and for the reasons given by the District Court in this respect, the Court of Appeal finds that it was justifiable in the circumstances to publish Anthony White ’ s name and picture in Expressen and to publish information about the person Anthony White in Aftonbladet. In so finding, the Court of Appeal has also taken into account that Anthony White had declined to comment on information presented by the journalists of Aftonbladet. With respect to the question of whether the information is correct, it is word against word. Anthony White has asserted that he is innocent of all the accusations, that the information given about him was based on pure invention, that it is unverified or given by untrustworthy persons and that it was based on third or fourth generation hearsay, while [the responsible editors] appear still to assert that it cannot be excluded that Anthony White could be the person who murdered Olof Palme. The Court of Appeal concludes, however, that [the responsible editors], who have the burden of proof for their claims, have not shown that the disseminated information was correct. As regards the question of whether there has been a reasonable basis for the assertions, the Court of Appeal takes account of the following considerations. In defence of the publications in question, [the responsible editors] have asserted, among other things, that Anthony White ’ s name and picture have been published in international news media and on Swedish television. In response to what has been stated in this respect, the Court of Appeal would point out that each newspaper is responsible for its own publication. Consequently, the fact that the name and picture of the plaintiff had already been published by other news services has not relieved Expressen and Aftonbladet of the obligation to make their own assessment of the credibility of the information. The fact that the information had already been published by other media shows, however, that these news services might have considered that there was a reasonable basis for the information. In their defence, [the responsible editors] have also pointed out that, despite time constraints, they had careful checks made which gave an unequivocal picture of Anthony White. It has been established that the main basis for the assertions in issue in the case was the statements made by [the former senior official of the South African security police] Dirk Coetzee and that the newspapers checked that information mainly by having the journalists who wrote the articles contact journalist colleagues, public servants [and] representatives of various organisations for the protection of animals and the conservation of nature. However, with a few exceptions, the persons contacted have not been named. The contents of the testimony given by [the six journalist witnesses ] before the Court of Appeal show that each of them separately has had high ambitions to find out the degree of truth of Dirk Coetzee ’ s statements and to check with reliable sources who the person Anthony White was. What has come to hand in the case reveals that the witnesses, each one through their own work, have received concordant information. Checks have been made with several informants in different countries and in different capacities. ... Having regard to the above, in particular the checks made, and to the fact that the informant Dirk Coetzee also here [before the Court of Appeal] has given the impression of being a credible person, the Court of Appeal considers that the communication of the identifying information does not appear unjustified. In the Court of Appeal ’ s view, there has been a reasonable basis for the assertion and the reproduction of the picture in Expressen. The Court of Appeal further considers that Aftonbladet, in the circumstances, must be considered to have performed the checks that were called for. Having regard to this and the reasons given with respect to the publication in Expressen, the Court of Appeal finds that there was also a reasonable basis for the assertions in Aftonbladet .” 12. On 29 May 2002 the Supreme Court ( Högsta domstolen ) refused the applicant leave to appeal. | The applicant – a well-known figure whose alleged illegal activities had already been the focus of media attention – complained that the Swedish courts had failed to provide due protection for his name and reputation following the publication, by two main evening newspapers in Sweden, of a series of articles in which the applicant was accused of various criminal offences, including the murder of the Swedish Prime Minister ten years before. |
1,055 | Protection of property (Article 1 of Protocol No. 1 to the Convention) | I. THE CIRCUMSTANCES OF THE CASE 9. The two applications relate to the effects of long-term expropriation permits and prohibitions on construction on the Estate of the late Mr. Sporrong and on Mrs. Lönnroth, in their capacity as property owners. A. The sporrong estate 10. The Sporrong Estate, which has legal personality, is composed of Mrs. M. Sporrong, Mr. C.-O. Sporrong and Mrs. B. Atmer, the joint heirs of the late Mr. E. Sporrong; they reside in or near Stockholm. They own a property, situated in the Lower Norrmalm district in central Stockholm and known as "Riddaren No. 8", on which stands a building dating from the 1860 ’ s. In the 1975 tax year the rateable value of the property was 600,000 Swedish crowns. 1. The expropriation permit 11. On 31 July 1956, acting pursuant to Article 44 of the Building Act 1947 (byggnadslagen - "the 1947 Act"), the Government granted the Stockholm City Council a zonal expropriation permit (expropriationstillstånd) covering 164 properties, including that owned by the Sporrong Estate. The City intended to build, over one of the main shopping streets in the centre of the capital, a viaduct leading to a major relief road. One of the viaduct ’ s supports was to stand on the "Riddaren" site, the remainder of which was to be turned into a car park. Under the Expropriation Act 1917 (expropriationslagen - "the 1917 Act"), the Government set at five years the time-limit within which the expropriation might be effected; before the end of that period the City Council had to summon the owners to appear before the Real Estate Court (fastighetdomstolen) for the fixing of compensation, failing which the permit would lapse. 12. In July 1961, at the request of the City, the Government extended this time-limit to 31 July 1964. Their decision affected 138 properties, including "Riddaren No. 8". At that time, the properties in question were not the subject of any city plan (stadsplan). 13. On 2 April 1964, the Government granted the City Council a further extension of the expropriation permit; this extension was applicable to 120 of the 164 properties originally concerned, including "Riddaren No. 8", and was valid until 31 July 1969. The City had prepared for Lower Norrmalm a general development plan, known as "City 62", which gave priority to street-widening for the benefit of private traffic and pedestrians. Subsequently, "City 67", a revised general development plan for Lower Norrmalm and Östermalm (another district in the city centre), stressed the need to improve public transport by means of a better network of roads. Some of the sites involved were to be used for street-widening, but any final decision had to await a decision as to the utilisation of the orders. It was estimated that the revised plan, which was of the same type as "City 62", should be implemented before 1985. 14. In July 1969, the City Council requested a third extension of the expropriation permit as regards certain properties, including "Riddaren No. 8", pointing out that the reasons for expropriation given in the "City 62" and "City 67" plans were still valid. On 14 May 1971, the Government set 31 July 1979, that is to say ten years from the date of the request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. In May 1975, the City Council put forward revised plans according to which the use of "Riddaren No. 8" was not to be modified and the existing building was not to be altered. On 3 May 1979, the Government cancelled the expropriation permit at the Council ’ s request (see paragraph 29 below). 15. The Sporrong Estate has never attempted to sell its property. 2. The prohibition on construction 16. On 11 June 1954, the Stockholm County Administrative Board (länsstyrelsen) had imposed a prohibition on construction (byggnadsförbud) on "Riddaren No. 8", on the ground that the proposed viaduct and relief road would affect the use of the property. The prohibition was subsequently extended by the Board to 1 July 1979. 17. In 1970, the Sporrong Estate obtained an exemption from the prohibition in order to widen the front door of the building. It never applied for any other exemptions. 18. The expropriation permit and the prohibition on construction affecting; "Riddaren No. 8" were in force for total periods of twenty-three and twenty-five years respectively. B. Mrs. Lönnroth 19. Mrs. I. M. Lönnroth lives in Stockholm, where she owns three-quarters of a property situated at "Barnhuset No. 6", in the Lower Norrmalm district; it is occupied by the two buildings erected in 1887-1888, one of which faces the street and the other the rear. In the 1975 tax year the rateable value of the applicant ’ s share of the property was 862,500 Swedish crowns. 1. The expropriation permit 20. On 24 September 1971, the Government authorised the Stockholm City Council to expropriate 115 properties, including "Barnhuset No. 6", and set 31 December 1979, that is to say ten years from the date of the Council request, as the time-limit for the institution of the judicial proceedings for the fixing of compensation. They justified their decision by reference to the "City 67" plan which envisaged that a multi-storey car park would be erected on the site of the applicant ’ s property. 21. However, work in this district was postponed and new plans were prepared for consideration. Believing her property to be in urgent need of repair, Mrs. Lönnroth requested the Government to withdraw the expropriation permit. The City Council replied that the existing plans did not allow any derogation to be made, and on 20 February 1975 the Government refused the request on the ground that the permit could not be revoked without the express consent of the City Council. On 3 May 1979, the Government cancelled the permit at the Council ’ s request (see paragraph 29 below). 22. Mrs. Lönnroth ’ s financial situation obliged her to try to sell her property. She made seven attempts to do so between 1970 and 1975, but the prospective buyers withdrew after they had consulted the city authorities. In addition, she sometimes had difficulty in finding tenants. 2. The prohibition on construction 23. On 29 February 1968, the Stockholm County Administrative Board decided to impose a prohibition on construction on "Barnhuset No. 6", on the ground that the site was to be turned into a car park. The prohibition was subsequently extended by the Board to 1 July 1980. 24. In 1970, Mrs. Lönnroth was granted an exemption in order to make alterations to the third floor of her premises; she never sought any other exemptions. She failed to obtain a loan when, in the early 1970 ’ s, one of the property ’ s major mortgagees demanded that the façade be renovated. 25. To sum up, Mrs. Lönnroth ’ s property was subject to an expropriation permit and a prohibition on construction for eight and twelve years respectively. C. The town-planning policy of the city of Stockholm 26. For several decades, spectacular changes have been taking place in the centre of Stockholm, comparable to those which have occurred in many cities which were reconstructed after being destroyed or severely damaged during the second world war. 27. Lower Norrmalm is a district where most of the capital ’ s important administrative and commercial activities used to be concentrated. Around 1945, the view was taken that the district should be restructured so that those activities could be carried on satisfactorily. For instance, a proper network of roads was needed. Furthermore, most of the buildings were decrepit and in a poor state of repair. A large-scale redevelopment scheme was necessary in order to provide suitable premises for offices and shops as well as to create a healthy and hygienic working environment. Zonal expropriation, introduced by an Act of 1953 which amended, inter alia, Article 44 of the 1947 Act, became the key instrument for implementing the City Council ’ s plans. In less than ten years more than one hundred buildings were demolished. Some of the vacant sites thereby created were used to make new roads and others were integrated into larger and more functional complexes. 28. During the 1970 ’ s, town-planning policy in Stockholm evolved considerably. Far from being in favour of opening access roads to the centre, the city authorities were now trying to reduce the number of cars in the capital. This new policy was reflected in the "City 77" plan, which was adopted on 19 June 1978. It makes provision for urban renovation based above all on gradual rebuilding that takes account of the present urban fabric and it envisages the preservation and restoration of most of the existing buildings. 29. On 3 May 1979, the Government, granting a request submitted by the City Council in October 1978, cancelled, as regards about seventy properties including those of the applicants, the expropriation permits issued in 1956 and 1971. This was because it was by then considered unlikely that the City would need to acquire these properties in order to implement its new town-planning scheme. 30. Notwithstanding the difficulties occasioned by the existence of zonal expropriation permits, it has proved possible to sell sixty-six properties in Stockholm affected by such permits. | These two applications related to the effects on the applicants, in their capacity as property owners, of long-term expropriation permits, accompanied by prohibitions on construction, affecting their properties. It amounted, in their view, to an unlawful infringement of their right to the peaceful enjoyment of their possessions. They also submitted that their complaints concerning the expropriation permits affecting their properties had not been heard by the Swedish courts. |
685 | Searches of journalists’ home or workplace, accessing of the phone data and/or seizure of journalistic material | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant company has its registered office in Luxembourg. 7. On 17 December 2008 the Portuguese-language newspaper Contacto Semanário (hereafter “ Contacto ”), published by the applicant company in Luxembourg, printed an article describing the situation of families who had lost custody of their children. The Central Social Welfare Department (SCAS) had allegedly instigated the withdrawal of custody in the cases concerned. The journalist reported on the case of two teenagers and the social worker dealing with their case, providing names. The teenage girl had reportedly suffered attempted rape and the teenage boy had allegedly burnt a friend with a cigarette. The article had been signed “Domingos Martins”. 8. The list of officially recognised journalists in the Grand Duchy of Luxembourg by the Press Council includes no journalist of that name. The list contains the names of several hundred journalists in alphabetical order of their surnames. Under the letter “D” is a journalist named De Araujo Martins Domingos Alberto. 9. The social worker complained about the article to the Director of the SCAS, who in turn complained to the Attorney General, contending that it amounted to defamation both of this specific social worker and of the Luxembourg judicial and social system in general. On 5 January 2009 the social worker also lodged a complaint. 10. On 30 January 2009 the public prosecutor of the Luxembourg District Court opened a judicial investigation in respect of a person or persons unknown, for a breach of section 38 of the Youth Welfare Act (amended) of 10 August 1992, as well as defamation or calumny. 11. On 30 March 2009 an investigating judge issued a search and seizure warrant in respect of the registered office of the applicant company, in the latter’s capacity as the publisher of Contacto “in order to search and seize any documents and items, in whatever form and on whatever medium, connected with the offences charged, including any element conducive to identifying the perpetrator of the offence or the Contacto newspaper employee who wrote the article in issue which was published in Contacto on 17 December 2008”. 12. On 7 May 2009 police officers visited the newspaper’s premises (at the applicant company’s registered office) with the warrant. The Government explained that when the investigators had visited the newspaper’s premises, the aim of this investigatory measure had been solely, in their own minds, to identify the author of the article in question. The Government cited in evidence the following passage from the 11 May 2009 police report on the search (original German): “In order to ascertain the identity of the author of the article ... the authority [the investigating judge] issued a search warrant. Prior to the execution of this warrant, the procedure was clarified with the authority [the investigating judge]. It was decided that the search was exclusively geared to clearly identifying of the author of the article.” 13. The journalist who had written the article gave the police officers a copy of the newspaper, a notebook, various documents (including judicial decisions on one of the subjects of the article) on which the article had been based, and a computer file and CD containing the article. The case file shows that the journalist, assisted by the lawyer of the publishing house and the editor-in-chief of Contacto at the time of the search, signed the search report without availing himself of the option of adding comments. 14. According to the applicant company, their cooperation had been forced on them as the police officers had impressed upon the journalist that in view of the search and seizure warrant he had no option but to cooperate. However, it emerged from an internal report drawn up by the applicant company on 8 May 2009 that the journalist told the police officers “ that he had no objection to giving them a copy [of his] notes ” and that the editor-in-chief of the newspaper had suggested handing over an electronic version of the article to the police officers. The same report stated that a police officer had inserted a USB memory stick into the journalist’s computer. The applicant company pointed out that it did not know whether he copied any files, although the case file showed that the police officers had at no stage been left alone on the premises. When the police officer had inserted the USB memory stick into the computer the applicant company’s lawyer had been present and had not objected. The 11 May 2009 police report on the search stated that the journalist, with the agreement of the editor-in-chef, had said that he was prepared to cooperate with the police. The police officers had replied that they had not expected any other reaction but nevertheless handed him the investigating judge’s warrant, explaining that in the event of refusal to cooperate, pressure could be brought to bear. 15. The 11 May 2009 police report also pointed out that the journalist had voluntarily handed over his notebook and a copy of the article to the police officers. He had also volunteered to show them, unbidden, the version of the article prepared on his computer and offered them a copy. Finally, he had also handed over a set of documents. The police officers had noted that the items taken away had been voluntarily presented and had exclusively served to exonerate the journalist, and there had been no mention of the of protection sources. In conclusion, they had stressed that the operation, which had taken between twelve and fifteen minutes, had taken place without any pressure and in a polite, respectful manner. 16. No objection was raised in the domestic courts as to the accuracy of either the police report or the record of items seized. 17. On 10 May 2009 the applicant company and the journalist applied to the chambre du conseil of the District Court to have the search and seizure warrant in issue and its execution declared null and void. 18. On 11 May 2009 the investigating judge of his own motion ordered the discontinuation of the seizure and the return of all the documents and items seized during the search. 19. On 20 May 2009 the chambre du conseil of the District Court ruled that the application to have the search and seizure declared null and void was unfounded. 20. In a declaration of 29 May 2009 the applicant company and the journalist lodged a fresh appeal against that decision. 21. On 27 October 2009 the chambre du conseil of the Court of Appeal upheld the order appealed against. 22. The applicant company did not inform the Court of any action taken on this search of its premises. | This case concerned a search and seizure warrant issued by an investigating judge against a newspaper after the latter had published an article which was the subject of a complaint to the judicial authorities by an individual mentioned in the article and his employer. |
89 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 9. T.P., the first applicant, gave birth to her daughter, K.M., the second applicant, on 29 January 1983. T.P. was then aged 17 years. 10. Between 1984 and 1987, the local authority, the London Borough of Newham, suspected that the second applicant was being sexually abused, partly as a result of the second applicant having a persistent urinary tract infection, partly because of her behaviour, including a remark made at the children’s hospital where she was admitted for treatment. She had told a social worker that B., the first applicant’s then boyfriend, had “hurt my bum”. In or about March 1986, surgery took place to re-implant the second applicant’s right ureter into her bladder. At a date unspecified, she also had surgery to remove a false second kidney. She continued to have urinary problems and associated infections. 11. There were case conferences held by the local authority on 13 May 1986, 26 June 1986 and 8 October 1986. Concern was expressed, inter alia, about the applicants’ home situation, where there was “a steady stream of young men” and about the first applicant’s ability to protect the second applicant and general parenting skills. The social worker Mr P. had mentioned the possibility of sexual abuse with the first applicant. In a later affidavit, he stated that she appeared angry that it was a concern and claimed that she never left K.M. alone with anyone and that K.M. would tell her if anyone hurt her. 12. In June 1987, during a visit to their home, social workers obtained information regarding their living arrangements including the fact that XY, the first applicant’s boyfriend, lived with the applicants. Concern was expressed regarding the first applicant’s care of her daughter and a case conference was held on 2 July 1987 to which the first applicant was not invited. As a result of the conference, the second applicant was placed on the Child Protection Register under the category of emotional abuse. It was also agreed at the conference that the social worker Mr P would obtain the first applicant’s consent for the second applicant to have a disclosure interview at a child guidance clinic. A further medical examination of the second applicant at the children’s hospital discovered no medical cause for her recurrent urinary infection. The hospital considered it necessary that the second applicant should be admitted to hospital for further tests but agreed to await the outcome of the interview at the child guidance clinic. 13. On 13 November 1987, at a child guidance clinic, the second applicant was interviewed by a consultant child psychiatrist, Dr V., employed by Newham health authority. The social worker, Mr P., was present during the interview whilst the first applicant waited in an adjoining room. The interview was recorded on videotape. The second applicant was aged four years and nine months at this time. 14. In the course of the interview, the second applicant disclosed that she had been abused by someone named X. The first applicant’s boyfriend, XY, shared the same first name, X, as the abuser. The transcript recorded inter alia : “Dr V.: (referring to a drawing made by K.M.) Whose face is that then?... Is that anyone, anybody special that face or just any face? K.M.: X’s. Dr V.: X’s face OK. Then who’s X? Is X someone you know? K.M.: My mum’s X. Dr V.: Oh your mum’s X. What is that mummy’s boyfriend. Is it? K.M. shakes her head. ... Dr V.: ... Is X still living at home with you? K.M.: shakes her head. Dr V.: He’s not. K.M.: Thrown him out my mum. Dr V.: Your mum throwed him out did she. ... K.M.: He’s coming in tomorrow. Dr V.: He’s coming in no more. K.M.: No he’s coming in tomorrow. Dr V.: He’s coming in tomorrow. What X. K.M. nods.” 15. The first applicant was then interviewed, again on video, and informed that the second applicant had disclosed that she had been sexually abused by XY. She was told that the second applicant could not be returned home but would be taken to a local hospital for further examination. When the first applicant asked whether or not her daughter was being taken into care, she received no reply. Dr V. also told the first applicant that she could see the recording of the interview with her daughter at some point. 16. After the interview, the first applicant asked her daughter if she had been abused by XY. The first applicant stated that the second applicant denied that she had been abused by XY and told this to Mr P. When the first applicant became agitated and angry, Dr V. and Mr P. both concluded that the first applicant would be unable to protect the second applicant from abuse and that she was attempting to persuade the second applicant to retract her allegation. Mr P. and Dr V. came to the conclusion that it would be necessary to remove the second applicant from the care of her mother immediately. In comments made to the first applicant in her interview, the possibility that in due course she could see the video of the disclosure interview was referred to by Dr V. and Mr P. 17. Later, on 13 November 1987, the local authority applied successfully to Newham magistrates court for a place of safety order. The local authority stated that the second applicant had been abused, had identified XY as the abuser and there was a risk of further direct abuse or that the first applicant would pressure the second applicant into retracting her allegation. The first applicant was not in court. A place of safety order was granted for 28 days. 18. On 18 November 1987, the second applicant was examined by a doctor who found that there were signs consistent with anal interference but no significant vaginal findings. 19. On 24 November 1987, the first applicant, having excluded all men from her home, applied to the High Court for the second applicant to be made a ward of court. The local authority attended the application and argued that they should have care and control of the second applicant in order to protect her from the risk of abuse. The local authority was awarded care and control of the second applicant and the first applicant was granted limited access. The local authority did not volunteer the video of the interview with the child. 20. Contact between the first and the second applicant was severely restricted between November 1987 and November 1988. The first applicant was permitted initially two hours of supervised contact with her daughter each week at the foster parent’s home. Following concerns that the first applicant was trying to induce her daughter to retract her evidence and was causing her distress, that access was altered to no telephone calls and one supervised access visit per week at the social services’ office. The second applicant had no contact with her extended family, including her maternal grandmother who was terminally ill and died whilst the second applicant was in the care of the local authority. 21. During this period the second applicant continued to have urinary problems, including incontinence. In April 1988, she underwent another operation, which improved her condition, though she remained subject to frequent infections. 22. During 1988, the first applicant gave birth to a son, D., fathered by XY. D. was made a ward of court but the local authority did not apply to remove D. from the care of his mother and XY. 23. In or about October 1988, Dr B., who had been instructed on behalf of the first applicant in order to assist her in reaching a conclusion regarding the allegations that the second applicant had been sexually abused, obtained the consent of Dr V. to view the video recording of the second applicant’s disclosure interview. In his letter dated 17 October 1988 to the first applicant’s solicitor, he gave his firm opinion that the interview disclosed a high probability that the second applicant had been abused sexually and that there appeared to be little doubt that she was identifying the mother’s boyfriend as the perpetrator. He recommended that the first applicant be allowed to see the video. He referred to Dr V.’s continual insistence that the court would not approve of the first applicant seeing the video and gave his own opinion that the best interests of the second applicant would be served by her mother having access to the fullest possible information. Dr V. informed Dr B. that she would not consent to the first applicant having access to the video until after the full hearing in the wardship trial. 24. On 1 November 1988, during the wardship proceedings regarding D., Registrar Conn ordered that the video be disclosed within seven days. The health authority and Dr V. issued a summons proposing to intervene in the proceedings and applying for the video and transcript not to be made available to the first applicant. 25. In her affidavit of 8 November 1988, Dr V. expressed her opinion that medical confidentiality be attached to the video and that it should only be disclosed if in the interests of the child, which the circumstances showed was not the case. “It is my professional belief that for the parties to see the video recording is not in the interests of children, and in particular not in this case. The possible harm to children arises from them being in the position whereby their words or actions, given in confidence, may control events or decisions. Anger, unforgiveness or victimisation may well be directed at the child especially if the purpose of the viewing is to enable a party to seek to establish his or her innocence of alleged Child Sexual abuse or to confirm a party’s view that no Child Sexual abuse has taken place and that the child must be lying.” She had no objection to the lawyers and medical experts seeing the tape and transcript. 26. By reports dated 11 November 1988, Dr B. and a social worker for the local health authority gave their opinions that it was good and desirable practice for parents to see the interviews involving their children. Dr B. noted generally that the mothers of abused children would often be in a position to clarify details, including the identity of the alleged abuser. He also understood that the video had already been shown by the police to XY in the course of their investigation into the allegations of abuse and considered that it would appear against natural justice to deny the first applicant similar opportunity. He saw no risk of harm flowing to the second applicant from such disclosure. 27. On an unspecified date at or about that time, the first applicant’s solicitors had sight of the transcript. The transcript showed that the second applicant had shaken her head when asked whether the abuser was living at home and that she had identified her abuser as having been thrown out of the house by the first applicant. These matters, which were inconsistent with the identification of XY as the abuser, were raised by the first applicant’s solicitors with the local authority on or about 11 November 1988, when the summons concerning the video was to be heard. 28. On 21 November 1988, at a hearing in the High Court the local authority recommended that the second applicant be rehabilitated to the first applicant and XY for a trial period of four to six months at which point a final proposal would be made. In a report dated 18 November submitted for that hearing, a social worker for the local authority stated that the fact that the second applicant had been sexually abused had been acknowledged by all the psychiatrists in the case, that there was now doubt as to the identity of the abuser but that whoever it was, the second applicant had suffered a seriously damaging experience from which her mother had been unable to protect her. While there had been doubts as to the first applicant’s ability to be a “good enough parent”, it was noted that her situation had changed – she had “matured”, had had a second child and was in a stable relationship with the second child’s father. If over the trial period, any further abuse occurred, it was proposed that the second applicant be removed permanently with a view to adoption and that D.’s future be assessed. In her affidavit of 21 November 1998, the first applicant said that she had been informed, and believed, that the video and transcript had been reviewed by the local authority who had concluded that her boyfriend XY was no longer a suspected abuser. Mr Justice Lincoln ordered by consent that the second applicant remain a ward of court and that interim care and control be committed to the local authority who had leave to place her with the first applicant. The matter was adjourned for a period of not more than six months. 29. The second applicant remained with the first applicant from that time onwards. In about November 1989, the final hearing took place in the High Court. The local authority advised the judge that there was no longer any concern that required the second applicant to remain a ward of court. The wardship was discharged. 30. On 8 November 1990, the applicants issued proceedings making allegations of negligence and breach of statutory duty against the local authority, the central allegation being that the social worker, Mr P., and the psychiatrist, Dr V., failed to investigate the facts with proper care and thoroughness and failed to discuss their conclusions with the first applicant. The health authority and Dr V. were also named as defendants. The applicants claimed that as a result of their enforced separation each of them had suffered a psychiatric disorder. 31. Both applicants were seen by a psychiatrist who diagnosed that they were suffering from psychological disturbance known as anxiety neurosis. He issued two reports, one dated 21 February 1991 and the second undated, concerning the effects of the separation and proceedings. 32. On 19 November 1992, Master Topley struck out the application as revealing no cause of action on the basis that Dr V. enjoyed immunity in suit as a witness or potential witness in proceedings concerning the abuse of the second applicant and that this acted to bar the applicants’ claims. The applicants’ appeal to the High Court was dismissed on 17 March 1993 by Judge Phelan who held that no claim could arise from any alleged right to custody of a child which would give rise to an award of damages. 33. In the Court of Appeal, the High Court’s striking out decision was upheld on 23 February 1994. The majority found that no claim for breach of statutory duty in respect of sections 1 and 18 of the Child Care Act 1980 could arise, due to the general nature of the duty, the imprecise terms in which it was couched and the fact that the alleged breach of duty took place before the child was taken into care under the statutory duty in question. They held in respect of the claims that Mr P. and Dr V. were liable in damages as professional persons who caused personal injuries that the local authority arranged for the disclosure interview to enable to decide whether or not to intervene in the performance of its statutory functions. The psychiatrist Dr V. was acting in order to advise the local authority and owed a duty of care to the local authority, not to the first or second applicant. Nor could the local authority be held liable for the negligent mistake made by the social worker in carrying out the statutory function of the local authority to make enquiries. Reference was made to the policy considerations weighing against imposing liability in such matters. However, the Master of the Rolls, Sir Thomas Bingham, dissented and stated that he believed that it could be argued that a common law duty of care was owed to the second applicant by the psychiatrist and the local authority (reported as M v. Newham LBC; X v. Bedfordshire CC (CA) 2WLR 554). Leave was granted to appeal to the House of Lords. 34. On appeal to the House of Lords, the decision of the majority of the Court of Appeal was upheld on 29 June 1995. Lord Browne-Wilkinson delivered the leading judgment concerning three cases, the Bedfordshire case, the Newham case (the applicants’ case) and the Dorset case (reported as X and Others v. Bedfordshire County Council [1995] 3 AER 353). 35. As regarded the claims for breach of statutory duty made in both the Newham and Bedfordshire cases, Lord Browne-Wilkinson held: “... My starting point is that the Acts in question are all concerned to establish an administrative system designed to promote the social welfare of the community. The welfare sector involved is one of peculiar sensitivity, involving very difficult decisions how to strike the balance between protecting the child from immediate feared harm and disrupting the relationship between the child and its parents. In my judgment in such a context it would require exceptionally clear statutory language to show a parliamentary intention that those responsible for carrying out these difficult functions should be liable in damages if, on subsequent investigation with the benefit of hindsight, it was shown that they had reached an erroneous conclusion and therefore failed to discharge their statutory duties. ... When one turns to the actual words used in the primary legislation to create the duties relied upon in my judgment they are inconsistent with any intention to create a private law cause of action.” 36. In respect of the applicants’ claim in the Newham case that the local authority and the health authority were vicariously liable for the actions of the social worker, Mr P., and psychiatrist Dr V. respectively, Lord Browne-Wilkinson said as follows: “In the Newham case [the applicant’s case] the pleadings and Mr Munby’s submissions make it clear how the case is put. The social worker and the psychiatrist, as professionals, owed a personal duty to the first plaintiff, the child, and to the second plaintiff, the mother, to exercise reasonable professional skills in the conduct of the interview with the child and to make proper enquiries. The social worker and the psychiatrist were each personally in breach of this duty, for which breach their employers ... are vicariously liable. ...” Like the majority in the Court of Appeal, I cannot accept these arguments. The social workers and the psychiatrists were retained by the local authority to advise the local authority, not the plaintiffs. The subject matter of the advice and activities of the professionals is the child ... the fact that the carrying out of the retainer involves contact and relationship with the child cannot alter the extent of the duty owed by the professionals under the retainer from the local authority ... In my judgment in the present cases, the social workers and the psychiatrist did not, by accepting the instructions of the local authority assume any general professional duty of care to the plaintiff children ... Even if contrary to my view the social workers and psychiatrist would otherwise have come under a duty of care to the plaintiffs, the same considerations which have led me to the view that there is no direct duty of care owed by the local authorities apply with at least equal force to the question whether it would be just and reasonable to impose such a duty of care on the individual social workers and the psychiatrist. ... In the Newham case [the applicant’s case] it is not alleged that the borough council was under any direct duty of care to the plaintiffs: the case is based solely on the vicarious liability of the council and the health authority for the negligence of their servants.” 37. In the Bedfordshire case, where the applicant children had argued that the local authority owed them a direct duty of care in the exercise of their child care functions, Lord Browne-Wilkinson stated, insofar as relevant, as follows: “I turn then to consider whether, in accordance with the ordinary principles laid down in Caparo [1990] 2 A.C. 605, the local authority ... owed a direct duty of care to the plaintiffs. The local authority accepts that they could foresee damage to the plaintiffs if they carried out their statutory duties negligently and that the relationship between the authority is sufficiently proximate. The third requirement laid down in Caparo is that it must be just and reasonable to impose a common law duty of care in all the circumstances ... The Master of the Rolls took the view, with which I agree, that the public policy consideration that has first claim on the loyalty of the law is that wrongs should be remedied and that very potent counter considerations are required to override that policy (see [1994] 4 AER 602 at 619). However, in my judgment there are such considerations in this case. First, in my judgment a common law duty of care would cut across the whole statutory system set up for the protection of children at risk. As a result of the ministerial directions contained in “Working Together” the protection of such children is not the exclusive territory of the local authority’s social services. The system is inter-disciplinary, involving the participation of the police, educational bodies, doctors and others. At all stages the system involves joint discussions, joint recommendations and joint decisions. The key organisation is the Child Protection Conference, a multi-disciplinary body which decides whether to place the child on the Child Protection Register. This procedure by way of joint action takes place, not merely because it is good practice, but because it is required by guidance having statutory force binding on the local authority. The guidance is extremely detailed and extensive: the current edition of “Working Together” runs to 126 pages. To introduce into such a system a common law duty of care enforceable against only one of the participant bodies would be manifestly unfair. To impose such liability on all the participant bodies would lead to almost impossible problems of disentangling as between the respective bodies the liability, both primary and by way of contribution, of each for reaching a decision found to be negligent. Second, the task of the local authority and its servants in dealing with children at risk is extraordinarily delicate. Legislation requires the local authority to have regard not only to the physical well-being of the child but also to the advantages of not disrupting the child’s family environment. ... In one of the child abuse cases, the local authority is blamed for removing the child precipitately; in the other for failing to remove the children from their mother. As the Report of the Inquiry into Child Abuse in Cleveland 1987 (Cmnd. 412) (“Cleveland Report 1987”) said, at p. 244: ‘... It is a delicate and difficult line to tread between taking action too soon and not taking it soon enough. Social services whilst putting the needs of the child first must respect the rights of the parents; they also must work if possible with the parents for the benefit of the children. These parents themselves are often in need of help. Inevitably a degree of conflict develops between those objectives.’ Next, if liability in damages were to be imposed, it might well be that local authorities would adopt a more cautious and defensive approach to their duties. For example, as the Cleveland Report makes clear, on occasions the speedy decision to remove the child is sometimes vital. If the authority is to be made liable in damages for a negligent decision to remove a child (such negligence lying in the failure properly first to investigate the allegations) there would be a substantial temptation to postpone making such a decision until further inquiries have been made in the hope of getting more concrete facts. Not only would the child in fact being abused be prejudiced by such delay, the increased workload inherent in making such investigations would reduce the time available to deal with other cases and other children. The relationship between the social worker and the child’s parents is frequently one of conflict, the parent wishing to retain care of the child, the social worker having to consider whether to remove it. This is fertile ground in which to breed ill-feeling and litigation, often hopeless, the cost of which both in terms of money and human resources will be diverted from the performance of the social service for which they were provided. The spectre of vexatious and costly litigation is often urged as a reason for not imposing a legal duty. But the circumstances surrounding cases of child abuse make the risk a very high one which cannot be ignored. If there were no other remedy for maladministration of the statutory system for the protection of children, it would provide substantial argument for imposing a duty of care. But the statutory complaints procedures contained in section 76 of the 1980 Act and the much fuller procedures now available under the 1989 Act provide a means to have grievances investigated though not to recover compensation. Further, it was submitted (and not controverted) that the local authorities Ombudsman would have power to investigate cases such as these. Finally, your Lordships’ decision in Caparo [1990] 2 A.C. 605 lays down that in deciding whether to develop novel categories of negligence the court should proceed incrementally and by analogy with decided categories. We were not referred to any category of case in which a duty of care has been held to exist which is in any way analogous to the present cases. Here, for the first time, the plaintiffs are seeking to erect a common law duty of care in relation to the administration of a statutory social welfare scheme. Such a scheme is designed to protect weaker members of society (children) from harm done to them by others. The scheme involves the administrators in exercising discretion and powers which could not exist in the private sector and which in many cases bring them into conflict with those who, under the general law, are responsible for the child’s welfare. To my mind, the nearest analogies are the cases where a common law duty of care has been sought to be imposed upon the police (in seeking to protect vulnerable members of society from wrongs done to them by others) or statutory regulators of financial dealing who are seeking to protect investors from dishonesty. In neither of these cases has it been thought appropriate to superimpose on a statutory regime a common law duty of care giving rise to a claim in damages for failure to protect the weak against the wrongdoer. ... In my judgment, the courts should proceed with great care before holding liable in negligence those who have been charged by Parliament with the task of protecting society from the wrong doings of others.” | This case concerned the placement of a four-year-old girl in the care of the local authorities. She had complained that she had been sexually abused and her mother was considered incapable of protecting her. The mother and daughter alleged that they had had no access to a court or to an effective remedy to challenge the lack of justification for this placement, which had separated them. |
254 | Article 3 (prohibition of torture and inhuman or degrading punishment or treatment) of the Convention | I. Circumstances of the case A. The applicant 7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above). B. The situation in the South-East of Turkey 8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. C. The detention of the applicant 10. The facts in the case are in dispute. 11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin. 12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts. 13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters. He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day. 14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: "If you don ’ t know him now, you will know him under torture." According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as "Palestinian hanging". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes. During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive. 15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission. 16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident. 17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody. 18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor. According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured. The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands. D. Events on the applicant ’ s release 19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back. He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him. 20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged. 21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant. E. The death of the applicant 22. Mr Aksoy was shot dead on 16 April 1994. According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application. The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions. A suspect, allegedly a member of the PKK, has been charged with the murder. F. The Commission ’ s findings of fact 23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995. After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts: a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days. b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged. c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital. d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as "Palestinian hanging". e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police. f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries. g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation. | In November 1992 the applicant was arrested and taken into police custody on suspicion of aiding and abetting the PKK. He complained of various forms of ill-treatment: of having been kept blindfolded during interrogation; of having been suspended from his arms, which were tied together behind his back ("Palestinian hanging"); of having been given electric shocks, exacerbated by having water thrown over him; and lastly of having been subjected to beatings, slapping and verbal abuse. |
810 | Legal capacity | 2. The applicant was born in 1959 and lives in Bucharest. He was represented by Mr C. Cojocariu, a lawyer practising in Orpington (United Kingdom). 3. The Government were represented by their Agent, 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. 5. From 30 June 2006 until 29 May 2018 (see paragraph 21 below) the applicant was resident in the Săpoca Psychiatric Hospital (“the hospital”), situated within the administrative area of the Unguriu village local authorities, in Buzău county. The background to the case is described in the case of N. v. Romania (no. 59152/08, 28 November 2017) which was brought by the same applicant and concerned the lawfulness of his placement in psychiatric hospitals (Article 5 §§ 1 (e) and 4 of the Convention). The Court’s judgment in the case of N. v. Romania, no. 59152/08 6. On 28 November 2017 the Court gave judgment in the case of N. v. Romania (cited above). It found that, at least since 2007, the applicant’s detention had been devoid of any basis in law and had not been warranted under Article 5 § 1 (e) of the Convention (ibid., § 161). Moreover, his continued detention after the adoption of the decision of the Buzău County Court of 29 August 2016 upholding the maintenance of the detention measure, had been arbitrary (ibid., §§ 62 and 167). The Court further considered that the intervals at which the courts had decided on the necessity of maintaining the applicant’s detention had not met the “speediness” requirement set out in Article 5 § 4 of the Convention (ibid., § 195) and that the applicant had not benefited from adequate legal assistance in the proceedings concerning the periodic judicial review of the necessity of his detention (ibid., § 198). 7. It thus found a violation of Articles 5 §§ 1 (e) and 4 of the Convention (ibid., §§ 168 and 199). 8. In addition, the Court indicated several individual and general measures with a view to helping the respondent State fulfil its obligations under Article 46 of the Convention (ibid., §§ 216-19). 9. That judgment became final on 28 February 2018 and the Committee of Ministers of the Council of Europe (“the Committee of Ministers”) started the supervision of its execution. At its meeting no. 1331(CM-DH) which took place from 4 to 6 December 2018, the Committee of Ministers adopted the following decision: “The Deputies 1. recalling that this case concerns the applicant’s unlawful prolonged psychiatric confinement as a security measure and the authorities’ failure to secure his immediate release in conditions meeting his needs, as well as shortcomings in the judicial review of the applicant’s continued deprivation of liberty; As regards urgent individual measures 2. noted that in May 2018 the applicant was placed in a recovery centre, as a transitional step until suitable community-based accommodation could be found, and that the authorities have since found him accommodation which he will be able to move to once the necessary staffing arrangements have been made; considered that the applicant’s situation no longer calls for the taking of urgent individual measures; 3. encouraged the authorities to continue closely to monitor the situation to ensure that the applicant can move into the sheltered housing procured for his accommodation as soon as qualified staff have been assigned; As regards individual measures 4. deeply regretted that the deficiencies in the current system of legal protection for adults left the domestic courts with no option but to place the applicant under guardianship and thus deprive him of the exercise of his civil and political rights; 5. recalled in this respect that the Committee is supervising the adoption by Romania of legislation establishing a new system of independent and effective legal protection, tailored to the specific needs of adults with mental disabilities, in the case of Centre for Legal Resources on behalf of Valentin Câmpeanu [ v. Romania [GC], no. 47848/08, ECHR 2014]; 6. pending the adoption of this legislation or until such time as the domestic courts terminate the applicant’s guardianship, invited the authorities to take steps to ensure that the appointed guardian involves the applicant and takes his preferences into account in the decisions concerning him, if consistent with his best interests; also invited them to inform the Committee of the legal safeguards or any arrangements made or envisaged to ensure that the sum awarded as just satisfaction is used in the applicant’s best interests; 7. invited the authorities to inform the Committee of relevant developments in the applicant’s situation and the concrete general measures envisaged in response to the judgment by the end of February 2019 at the latest.” Proceedings for legal incapacitation 10. On 3 July 2014 the Government Agent before the Court asked the local authorities of Unguriu village to start the procedure for appointing a representative to represent the applicant in the proceedings before the Court in the case of N. v. Romania (cited above). 11. On 27 June 2014 the hospital lodged an action with the Pătârlagele District Court seeking to divest the applicant of his legal capacity and to appoint a legal guardian for him. The hospital requested that a temporary guardian ( curator special ) be appointed to represent the applicant’s interests in those proceedings as well as in the proceedings before the Court. In the application, the hospital explained that the applicant suffered from paranoid schizophrenia and that the illness did not allow him to properly exercise his rights and comply with his obligations. On 7 July 2014, with the applicant’s consent, the court appointed a temporary guardian, a lawyer from the Pătârlagele legal aid service of the Buzău Bar Association. 12. On 29 October 2015, at the court’s request, the applicant was examined by a psychiatric commission of the Buzău County Forensic Medical Service. In its report of 2 December 2015 that service confirmed the diagnosis of paranoid schizophrenia and declared the applicant “psychologically incapable of managing himself and of taking decisions in an informed and predictable manner concerning his civil obligations and rights and his own interests”. The report was added to the file. 13. The applicant was present at the hearings before the District Court, and was accompanied by a nurse from the hospital and by his guardian ad litem. Before the court he asked that the action concerning him lodged by the hospital be dismissed. He also submitted a series of written documents. 14. On 30 August 2016, in the light of the diagnosis and of the findings of the psychiatric report, and taking into account the applicant’s written submissions which “confirmed his mental situation”, the Pătârlagele District Court divested the applicant of his legal capacity and placed him under legal guardianship. Having postponed the hearing on several occasions in order to allow social services to find a family member or acquaintance willing to take on the role of guardian, and having failed to identify such a suitable person, the court, by the same decision, designated as his legal guardian the social welfare department of Unguriu village (“the Unguriu social welfare authority”) owing to its proximity to the hospital. Ms T.E.C., an employee of the Unguriu social welfare authority, was appointed as the applicant’s legal guardian. 15. The applicant appealed against that decision. He was assisted by the same lawyer who represented him in the present proceedings (see paragraph 2 above). He argued that the measure ordered by the court was not justified and had been taken in disregard of his procedural rights. He also urged the court to take into account the precarious situation of people with mental disabilities in the respondent State, who were marginalised, segregated and subjected to institutionalised abuse. He relied on Article 164 § 1 of the Civil Code (“the CC”, see paragraph 26 below), on the Articles of the Constitution concerning equality, the right to private and family life and protection of people with disabilities, and on Articles 8 and 14 of the Convention. He also requested that the court refer the case to the Court of Justice of the European Union (“the CJEU”) for a preliminary ruling, arguing that the decision contravened the requirements of the European Union (“EU”) legislation concerning the right to vote and the right to work of people with disabilities. He also raised an objection to the constitutionality of Article 164 § 1 of the CC concerning the guardianship procedure, which in his view discriminated against people with mental disabilities and deprived them of the exercise of their rights. On 5 December 2016 the County Court appointed a temporary guardian from the list of lawyers of the Buzău Bar Association. 16. On 9 January 2017 the County Court refused to refer the preliminary question to the CJEU, as it considered that the issues raised by the applicant in his request did not concern the interpretation or validity of EU law in the proceedings before it. 17. On 6 February 2017 the Buzău County Court referred the objection to the constitutionality of Article 164 § 1 of the CC to the Constitutional Court, which rendered its decision on 16 July 2020 (see paragraph 31 below). At the same time, the County Court decided not to await the outcome of the constitutional proceedings and thus continued its examination of the appeal. 18. On 10 March 2017 the Mina Minovici Institute for Forensic Medicine confirmed the report of 2 December 2015 (see paragraph 12 above). In June 2017 a commission from that institute examined the applicant and on 19 December 2017 issued a new psychiatric report reaching the same conclusion as the Buzău County commission. It recommended that the applicant, who was “mentally incapable of caring for himself, of deciding on his best interests, and of acting in an informed manner in compliance with his civil rights and obligations” be divested of his legal capacity. The report also stated that even with appropriate medical treatment the applicant was unable to manage his personal and proprietary interests. 19. On 27 February 2018 the Buzău County Court upheld the decision rendered by the District Court on 30 August 2016 (see paragraph 14 above). It relied on the definition of insanity by Law no. 71/2011 (see paragraph 27 below) and also pointed out that the measure in question was not aimed at punishing the individuals concerned, but rather at protecting them and also third parties. The court noted that the legislation did not allow for a more nuanced response in the case of people with mental problems. The court further stated that in the absence of any suitable family member or acquaintance, appointing the local authority as guardian was the only sensible and legal solution. 20. The applicant, through counsel, appealed on points of law, but in a final decision of 25 September 2018 the Ploieşti Court of Appeal dismissed the appeal on the grounds that the law did not provide for that means of appeal. Proceedings with a view to replacing the legal guardian 21. On 29 May 2018 the applicant was transferred from the hospital to the U. Centre for Neuropsychiatric Recuperation and Rehabilitation, a closed care home situated in Bucharest (“the U. Centre”). 22. On 4 June 2019 the Bucharest Directorate General for Social Welfare and Child Protection (“the Bucharest social welfare authority”) lodged an application with the Bucharest District Court seeking to replace Ms T.E.C. in her role as the applicant’s legal guardian (see paragraph 14 above) with a new legal guardian, Mr B.V.G., a psychologist who worked in the U. Centre and who, at that time, was also the applicant’s therapist and the person in charge of his case (case manager). It argued that this change would reflect the residence arrangements concerning the applicant and would optimise the decision-making process in his regard. Both Ms T.E.C. and Mr B.V.G. gave their consent to the proposed change. The applicant was not party to these proceedings, which took place between the Bucharest social welfare authority, Ms T.E.C. and Mr B.V.G.; the Unguriu social welfare authority was also notified of the proceedings. 23. In an interlocutory decision of 22 August 2019 the Bucharest District Court, relying on Article 173 of the CC (see paragraph 26 below), allowed the application and designated Mr B.V.G. as the applicant’s new legal guardian, on the grounds that the applicant had been transferred to a place which was too far away from his present legal guardian and that the two guardians and the Unguriu social welfare authority had given their consent. 24. The Government added to their submissions in the present case a handwritten statement dated 11 February 2019 in which the applicant agreed that Ms T.E.C. be replaced as his legal guardian by Mr B.V.G. That statement was not mentioned in the application of 4 June 2019 (see paragraph 22 above) or in the interlocutory decision of 22 August 2019 (see paragraph 23 above). 25. The applicant alleged that he had learned of that decision on 17 October 2019, in the proceedings before the Constitutional Court, when it had been added to the file by the representative of the U. Centre. | This case concerned proceedings in which the domestic courts, basing their decisions mainly on medical expert opinions, divested the applicant (who was suffering from paranoid schizophrenia as confirmed by a psychiatric commission) of his legal capacity and placed him under the full authority of a legal guardian. It also concerned the manner in which the domestic authorities subsequently changed his legal guardian. |
163 | Sterilisation operations | I. THE CIRCUMSTANCES OF THE CASE 6. The applicants are eight female Slovakian nationals of Roma ethnic origin. A. Background to the case 7. The applicants were treated at gynaecological and obstetrics departments in two hospitals in eastern Slovakia during their pregnancies and deliveries. Despite continuing to attempt to conceive, none of the applicants has become pregnant since their last stay in hospital, when they delivered via caesarean section. The applicants suspected that the reason for their infertility might be that a sterilisation procedure was performed on them during their caesarean delivery by medical personnel in the hospitals concerned. Several applicants had been asked to sign documents prior to their delivery or on discharge from the hospital but they were not sure of the content of those documents. 8. The applicants, together with several other Roma women, granted powers of attorney to lawyers from the Centre for Civil and Human Rights, a non-governmental organisation based in Košice. The lawyers were authorised to review and photocopy the women ’ s medical records in order to obtain a medical analysis of the reasons for their infertility and possible treatment. The applicants also authorised the lawyers to make photocopies of their complete medical records as potential evidence in future civil proceedings for damages, and to ensure that such documents and evidence were not destroyed or lost. The photocopies were to be made by the lawyers with a portable photocopier at the expense of the Centre for Civil and Human Rights. 9. The applicants attempted to obtain access to their medical records in the respective hospitals through their authorised representative in August and September 2002. The lawyer unsuccessfully asked the management of the hospitals to allow her to consult and photocopy the medical records of the persons who had authorised her to do so. 10. On 11 October 2002 representatives of the Ministry of Health expressed the view that section 16(6) of the Health Care Act 1994 did not permit a patient to authorise another person to consult his or her medical records. The above provision was to be interpreted in a restrictive manner and the term “legal representative” concerned exclusively the parents of an underage child or a guardian appointed to represent a person who had been deprived of legal capacity or whose legal capacity had been restricted. B. Civil proceedings 11. The applicants sued the hospitals concerned. They claimed that the defendants should be ordered to release their medical records to their authorised legal representative and to allow them to obtain a photocopy of the documents included in the records. 1. Action against the J. A. Reiman University Hospital in Prešov 12. Six applicants brought an action against the J.A. Reiman University Hospital ( Fakultná nemocnica J. A. Reimana ) in Prešov ( “the Prešov Hospital ”) on 13 January 2003. 13. On 18 June 2003 the Prešov District Court delivered a judgment ordering the hospital to permit the plaintiffs and their authorised representative to consult their medical records and to make handwritten excerpts thereof. The relevant part of the judgment became final on 15 August 2003 and enforceable on 19 August 2003. 14. With reference to section 16(6) of the Health Care Act 1994 the District Court dismissed the request to photocopy the medical documents. The court noted that the records were owned by the medical institutions concerned and that such a restriction was justified with a view to preventing their abuse. It was not contrary to the plaintiffs ’ rights and freedoms guaranteed by the Convention. The applicants appealed against that part of the judgment. 15. On 17 February 2004 the Regional Court in Prešov upheld the first-instance decision, according to which the applicants were not entitled to make photocopies of their medical files. There was no indication that the applicants ’ right to have any future claim for damages determined in accordance with the requirements of Article 6 § 1 of the Convention had been jeopardised. In particular, under the relevant law the medical institutions were obliged to submit the required information to, inter alia, the courts, for example in the context of civil proceedings concerning a patient ’ s claim for damages. 2. Action against the Health Care Centre in Krompachy 16. H.M. and V. Ž., the two remaining applicants, brought an identical action against the Health Care Centre ( Nemocnica s poliklinikou ) in Krompachy (“the Krompachy Hospital ”) on 13 January 2003. 17. On 16 July 2003 the District Court in Spišská Nová Ves ordered the defendant to allow the applicants ’ representative to consult their medical records and to make excerpts thereof. It dismissed the claim concerning the photocopying of the medical documents. The court referred to section 16(6) of the Health Care Act 1994 and noted that even courts or other authorities were not entitled to receive photocopies of medical records. Such a restriction was necessary in order to prevent abuse of personal data contained therein. 18. The applicants appealed against the decision concerning the photocopying of the documents. They relied on Articles 6 and 8 of the Convention and argued that, unlike public authorities and the medical institutions concerned, they had only limited access to their medical records, which meant that they were restricted in assessing the position in their cases and in bringing an appropriate action for damages. 19. On 24 March 2004 the Regional Court in Košice upheld the first-instance decision to reject the claim concerning the photocopying of the medical records. C. Constitutional proceedings 1. Complaint of 24 May 2004 20. On 24 May 2004 the six applicants who had sued the Prešov Hospital lodged a complaint under Article 127 of the Constitution. They alleged that the Prešov Hospital, the District Court and the Regional Court in Prešov had violated, inter alia, their rights under Articles 6 § 1 and 8 of the Convention. 21. As regards Article 6 § 1 the applicants argued that, in practice, handwritten excerpts from medical records could be abused just as photocopies of the relevant documents could. However, preventing the applicants from making photocopies of those documents put them at a disadvantage vis-à-vis the State, to which the medical institutions concerned were subordinated and which would act as defendant in proceedings concerning any future claim for damages. Furthermore, the principle of equality of arms required that the applicants should have at their disposal all the documentation in the form of photocopies. This would enable an independent expert, possibly abroad, to examine them, and also provide a safeguard in the event of the possible destruction of the originals. 22. Under Article 8 of the Convention the applicants complained that they had been denied full access to documents pertinent to their private and family lives in that they had been refused the right to make photocopies of them. 23. On 8 December 2004 the Constitutional Court (Third Chamber) rejected the complaint. It found no appearance of a violation of Article 6 § 1 of the Convention in the proceedings leading to the Regional Court ’ s judgment of 17 February 2004. As to the alleged violation of Article 8 of the Convention, the Constitutional Court held that the Regional Court had correctly applied section 16(6) of the Health Care Act of 1994 and that a fair balance had been struck between the conflicting interests. Reference was made to the explanatory report to that Act. Furthermore, Article 8 of the Convention did not encompass a right to make photocopies of medical documents. 2. Complaint of 25 June 2004 24. On 25 June 2004 the remaining two applicants lodged a similar complaint under Article 127 of the Constitution alleging a violation of, inter alia, Articles 6 § 1 and 8 of the Convention as a result of the conduct of the representatives of the Krompachy Hospital and in the proceedings leading to the Košice Regional Court ’ s judgment of 24 March 2004. 25. On 27 October 2004 the Constitutional Court (Second Chamber) rejected the complaint as being premature. The decision stated that the plaintiffs had lodged an appeal on points of law against the part of the Regional Court ’ s judgment by which the first-instance decision to grant their claim for access to medical records had been overturned. D. Subsequent developments 26. Subsequently seven applicants were able to access their files and to make photocopies thereof under the newly introduced Health Care Act 2004 (see paragraph 35 below) in circumstances which are set out in the decision on the admissibility of the present application. 27. As regards the eighth applicant, Ms J. H., the Prešov Hospital only provided her with a simple record of a surgical procedure indicating that surgery had been performed on her and that she had been sterilised during the procedure. On 22 May 2006 the Director of the Prešov Hospital informed the applicant that her complete medical file had not been located and that it was considered lost. On 31 May 2007 the Ministry of Health admitted that the Prešov Hospital had violated the Health Care Act 2004 in that it had failed to ensure the proper keeping of the medical file of Ms J. H. III. RECOMMENDATION OF THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE No. R (97) 5 ON THE PROTECTION OF MEDICAL DATA 36. Point 8 of the Recommendation adopted on 13 February 1997 deals with the rights of persons whose medical data have been collected. The relevant part provides: “ Rights of access and of rectification 8.1. Every person shall be enabled to have access to his/her medical data, either directly or through a health-care professional or, if permitted by domestic law, a person appointed by him/her. The information must be accessible in understandable form. 8.2 Access to medical data may be refused, limited or delayed only if the law provides for this and if: a. this constitutes a necessary measure in a democratic society in the interests of protecting state security, public safety, or the suppression of criminal offences; ... ” | Eight Slovak women of Roma ethnic origin found they were unable to conceive after having caesareans. Suspecting that they were sterilised without their knowledge during the operations, they sued the two Slovak hospitals concerned. |
626 | Associations, non governmental organisations, a.s.o. | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant is a non - governmental organisation which promotes tolerance and condemns all types of racially motivated discrimination. It was established under Swiss law and registered in Zürich. 6. On 5 November 2009 the youth wing of the Swiss People ’ s Party ( Junge Schweizerische Volkspartei ) held a demonstration in the train station square in the town of Frauenfeld concerning a public initiative to support the prohibition of the building of minarets in Switzerland. After the event the party published a report on its website, including the following excerpts: “In his speech in front of the Thurgau government building [ Thurgauer Regierungsgebäude ], B.K., the president of the local branch of the Young Swiss People ’ s Party [“ the JSVP”], emphasised that it was time to stop the expansion of Islam. With this demonstration, the Young Swiss People ’ s Party wanted to take an extraordinary measure in an extraordinary time. The Swiss guiding culture (“ schweizerische Leitkultur ”), based on Christianity, cannot allow itself to be replaced by other cultures, B.K. added. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one ’ s own identity.” 7. In response, the applicant posted an entry on its website in the section called “Chronology – Verbal racism”, entitled “Frauenfeld TG, 5 November 2009”, including the following extract: “According to the report of the event, B.K., the president of the local branch of the Young Swiss People ’ s Party, emphasised that it was time to stop the expansion of Islam. He added further: ‘ The Swiss guiding culture, based on Christianity, cannot allow itself to be replaced by other cultures. A symbolic sign, such as the prohibition of minarets, would therefore be an expression of the preservation of one ’ s own identity. ’ Swiss People ’ s Party of Switzerland canton representative H.L. also spoke to the few people who attended; nevertheless, the Young Swiss People ’ s Party speaks of a great success. (Verbal racism)” 8. On 29 November 2009 the popular initiative against the construction of minarets was accepted in a referendum and a constitutional amendment banning the construction of new minarets was introduced. 9. On 21 August 2010 B.K. filed a claim for the protection of his personality rights with the Kreuzlingen District Court ( Bezirksgericht Kreuzlingen ). He applied, firstly, to have the applicant organisation withdraw the entry in question from its homepage and, secondly, for it to be replaced with the court ’ s judgment. The applicant organisation replied that the title of the Internet entry had to be considered as a value judgment, which could only lead to an infringement of personality rights if it entailed an unnecessarily hurtful and insulting attack on the person concerned. 10. On 15 March 2011 the Kreuzlingen District Court dismissed B.K. ’ s action. It held that the publication of the impugned article on the applicant ’ s website had been justified since it had related to a political discussion on a matter of public interest. 11. On appeal, on 17 November 2011 the Thurgau Cantonal High Court ( Obergericht des Kantons Thurgau ) reversed the first-instance judgment. It held that classifying B.K. ’ s speech as “verbally racist” had been a mixed value judgment, which could lead to an infringement of personality rights if it was based on untruths. The High Court concluded that B.K. ’ s speech itself had not been racist. It therefore ordered that the impugned article be removed from the applicant ’ s website and replaced with the court ’ s judgment. 12. On 25 January 2012 the applicant organisation filed an appeal with the Federal Supreme Court ( Bundesgericht ), reiterating its argument that any interference with B.K. ’ s personality rights had been justified. One of the applicant ’ s main aims was to fight racism and to inform the public about hidden and open racist behaviour. Its website stated that public comments would be documented, even if they did not fall within the scope of the prohibition of racial discrimination enshrined in Article 261 bis of the Swiss Criminal Code. To fulfil its role of watchdog in that sense, it published articles and interviews concerning current events relating to racism and anti ‑ Semitism. 13. On 29 August 2012 the Federal Supreme Court dismissed the applicant organisation ’ s appeal, finding as follows (unofficial translation) : “ 3. The classification of and commenting on a person ’ s statements as ‘ verbal racism ’ violate that person ’ s honour. Not only in the context of the criminal offence of racial discrimination (Article 261 bis of the Criminal Code) but more generally, the term in question is, in the eyes of the average reader, capable of deliberately debasing the person whose comments have been classified as ‘ verbally racist ’, accusing him or her of behaviour which is frowned upon by society in the form of an act which is, at the very least, questionable in constitutional terms (cf. BGE 127 III 481 E. 2b / aa p. 487, 129 III 49 E. 2.2 p. 51 and 715 E. 4.1 p. 722). The appellant referred to the respondent ’ s speech at the public demonstration of 5 November 2009 on its website ... freely accessible on the Internet, commenting on the term ‘ verbal racism ’. It thereby violated the respondent ’ s honour as part of his personality within the meaning of Article 28 § 1 of the Civil Code. The infringement is unlawful if it is not justified by the consent of the injured party, by an overriding private or public interest or by law (Article 28 § 2 ZGB). 4. The main point in dispute is whether the appellant can rely on an overriding interest in classifying the respondent ’ s comments as ‘ verbal racism ’. 4.1. The case - law on press statements, on which the appellant relies, distinguishes between statements of facts on the one hand and value judgments on the other, and can be summarised as follows: ... 4.2. The appellant assigned the respondent ’ s statements to the section entitled ‘ verbal racism ’ ... That was a mixed value judgment. It contains a substantive core and, at the same time, a value judgment. In order to justify the substantive core, it is necessary to examine whether the respondent ’ s comments were indeed racist. 4.3. The term ‘ racism ’ is understood as ‘ a doctrine ’ which states that ‘ certain races or nations are superior to others in terms of their cultural capacity ’, and, on the other hand, a ‘ certain attitude, manner of thinking and acting towards people of (certain) other races or nations ’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 5, 1980, p. 2099). The adjective ‘ verbal ’ describes racism as ‘ [occurring] with words, with the help of language ’ (cf. Duden, The Great Dictionary of the German Language in Six Volumes, Vol. 6, 1981, p. 2730). Verbal racism is, therefore, no longer merely a certain attitude, but an attitude in the instant case which was expressed publicly through language (as opposed to, for example, through deeds ). ‘ Verbal racism ’ could therefore mean racial discrimination in the criminal sense, as the respondent claims. What is decisive, however, as the second- instance court correctly stated, is that the mere demonstration of a difference between two individuals or groups does not constitute racism. Racism begins where the difference amounts simultaneously to denigration of the victims and where the highlighting of differences is ultimately only a means to represent the victims negatively and to show disregard for their dignity. 4.4. The statements that led the appellant to conclude that there had been ‘ verbal racism ’ are the core phrases ‘ it is time to stop the spread of Islam ... The Swiss guiding culture (“ schweizerische Leitkultur ”), based on Christianity, cannot let itself be repressed by other cultures ... A symbolic sign, such as the prohibition of minarets, is therefore an expression of the preservation of one ’ s own identity ’. 4.4.1. In his public speech, the respondent expressed his opinion on the prohibition of minarets, which, in the opinion of the High Court, would not be compatible with freedom of religion and non-discrimination. He has, in that connection, compared his own beliefs ( ‘ Christianity ’ ) with foreign beliefs ( ‘ Islam ’ ), delimited them ( ‘ to halt ’, ‘ preserving one ’ s own identity ’ ) and described his own as worthy of protection and defence ( ‘ Swiss leading culture ’, ‘ not to be repressed ’ ). For the average listener, that does not result in the blanket denigration of the followers of Islam or show fundamental contempt for Muslims. 4.4.2. On the whole, it cannot be said that the comments made by the respondent, as understood by the average listener, could be described as ‘ verbally racist ’. Therefore, the substantive core does not apply and the assessment is not acceptable. It shows the respondent in the wrong light. Therefore, the mixed value judgment, which infringed personality rights, cannot be justified by any overriding interest within the meaning of Article 28 § 2 of the Civil Code. 4.4.3. That assessment cannot be altered by the fact that in the general interest of informing the public, there is an increased degree of publicity and a reduced level of protection for personality rights for people who engage in a political debate, such as the respondent in the campaign for the minaret initiative (see BGE 105 II 161 E. 3b p. 165, 107 II 1 E. 3b p. 5). That special framework allows for the assessment of breaches of honour on a somewhat different scale, but it can neither justify the dissemination of untruths nor the publication of value judgments that do not appear to be justified with regard to the underlying facts. ” V. Vulnerable / Target groups ... 119. In particular, ECRI is concerned to learn that, in recent years, some political parties, including the UDC, have considerably exploited and encouraged prejudice and racist stereotypes concerning Muslims within the majority population, not only in their rhetoric but also in political campaign posters. As a result some parts of public opinion may equate the entire Muslim population with terrorists and religious extremists. The fear of seeing Switzerland ‘ swamped by Muslims ’ is also exploited. In some cases, this prejudice apparently leads to discrimination, notably in employment, since Muslims are refused jobs because of the suspicion surrounding them. In particular, women who wear the Islamic headscarf encounter difficulties of access to jobs, housing and goods and services for the public. Muslims are also vulnerable to discrimination in matters of naturalisation. 120. To take but one example of hostility towards Muslims displayed in recent years, reference can be made to the federal popular initiative ‘ against the construction of minarets ’, aimed at adopting through referendum a new provision in the Federal Constitution, whereby ‘ the construction of minarets is forbidden ’. This initiative obtained the 100 000 signatures required and will therefore be submitted to the people and the cantons. It has, however, been deemed clearly incompatible with freedom of religion by the Federal Council, and hence in breach of the Swiss Constitution and international law as binding on Switzerland, and the Federal Council has called on the people and the cantons to reject it. The Federal Commission against Racism itself has stated that the initiative ‘ defames Muslims and discriminates against them. ’ However, it seems that, under Swiss law, only a popular initiative to amend the Constitution which violated ‘ mandatory international law ’ (jus cogens) would be invalid. ECRI regrets to learn that an initiative which infringes human rights can thus be put to the vote and very much hopes that it will be rejected. It regrets in particular the tone taken by the political discourse of the initiative ’ s supporters with regard to Muslims, as it largely contributes to their stigmatisation and to the reinforcement of racist prejudice and discrimination against them by members of the majority community.” 20. In its Concluding observations on the combined seventh to ninth periodic reports on Switzerland of 13 March 2014, the UN Committee on the Elimination of Racial Discrimination held as follows: “C. Concerns and recommendations ... Racism and xenophobia in politics and the media The Committee is deeply concerned at racist stereotypes promoted by members of right-wing populist parties and sections of the media, in particular against people from Africa and south-eastern Europe, Muslims, Travellers, Yenish, Roma, asylum seekers and immigrants. It is also concerned at the display of political posters with racist and/or xenophobic content and of racist symbols, as well as at racist behaviour and at the lack of prosecution in such cases. The Committee is further concerned at the xenophobic tone of popular initiatives targeting non-citizens, such as the initiative ‘ against the construction of minarets ’, adopted in November 2009, the initiative on the ‘ expulsion of foreign criminals ’, adopted in November 2010, and the initiative ‘ against mass immigration ’, adopted in February 2014. The Committee notes that such initiatives have led to a sense of unease among the affected communities and in Swiss society generally ... ” | This case concerned a complaint by a non-governmental organisation that its right to freedom of expression had been infringed because the domestic courts had found that it had defamed a politician by classifying his remarks at a speech during a campaign ahead of a 2009 referendum on banning minarets in Switzerland as “verbal racism”. |
39 | Children’s education and parents’ religious convictions | THE CIRCUMSTANCES OF THE CASE 6. The first two applicants in application no. 4762/18 are the parents of the third applicant, a school student who at the time of the application (during the school year 2017/18) was in the third and final grade of the General High School on the small island of Milos. The first applicant in application no. 6140/18 is the mother of the second applicant, a school student who at the time of the application was in the fourth grade of the only primary school on the small island of Sifnos. 7. The first two applicants in application no. 4762/18 and the first applicant in application no. 6140/18 never submitted, on behalf of their respective children, any application for exemption, either for the school year 2017/18 or for any of the previous school years, from the religious education course to be taught at each grade. Furthermore, they never took any legal action, by filing an application for annulment with the Supreme Administrative Court, against the circular of the Ministry of Education, Research and Religious Affairs dated 23 January 2015, which sets out the procedure for exemption from the religious education course. 8. However, in relation to two further decisions of the Minister of Education, Research and Religious Affairs, entitled “General and vocational high school religious education programme”, dated 13 June 2017, and “Primary and middle school religious education programme”, dated 16 June 2017, the applicants in both applications filed an application with the Supreme Administrative Court for annulment on 12 July 2017 – about two months before the start of the school year 2017/18 and during the courts’ summer recess between 1 July and 15 September. They challenged these decisions on the grounds that they did not provide for an objective, critical and pluralist religious education course that would not need the exemption procedure since it would involve all students, not because of a legal obligation, but because it would not harm their religious beliefs. 9. In their applications, the applicants also extensively argued that the procedure for exemption from the religious education course, as established by the above-mentioned circular, was contrary to Articles 8, 9 and 14 of the Convention. 10. On 12 and 24 July 2017 the applicants asked to have their cases examined by the Holidays Section under the urgent procedure, in accordance with Article 11 of Presidential Decree no. 18/1986, before the start of the new school year 2017/18 on 11 September 2017. However, the Supreme Administrative Court dismissed the requests for lack of importance. 11. The application for annulment was scheduled to be heard before the Third Section on 12 October 2017. The hearing was adjourned several times and rescheduled to take place on 9 November 2017, 14 December 2017, 8 February 2018, 22 March 2018, 19 April 2018, 4 May 2018, 1 June 2018 and 21 September 2018. 12. The Government submitted that the Third Section had adjourned the hearing because it had anticipated the issuance of judgments by the Plenary on two applications for the annulment of two ministerial decisions regarding the primary, middle and high school religious education programme which had become effective as from the school year 2016/17. The applicants contended that in the decisions postponing the hearing, the Third Section had not mentioned the reason alleged by the Government and could not have done so since the other cases had involved other parties and concerned the curriculum for the school year 2016/17. 13. The Supreme Administrative Court, sitting in plenary, published judgments no. 660/2018 (concerning the primary and middle school religious education programme for the school year 2016/17) and no. 926/2018 (concerning the high school religious education programme for the school year 2016/17) in the above-mentioned cases on 20 March 2018, following an appeal led by the Greek Orthodox metropolitan bishop of Pireus, who had challenged the implementation of the reform of religious education classes proposed in the programme. The Plenary held that the ministerial decisions were contrary to Article 4 § 1, Article 13 § 1 and Article 16 § 2 of the Constitution, Article 2 of Protocol No. 1 to the Convention, and Article 14 taken in conjunction with Article 9 of the Convention, as they deprived students abiding by the Orthodox Christian dogma of the right to be exclusively taught the dogmas, moral values and traditions of the Eastern Orthodox Church. 14. Following publication of the above-mentioned judgments, the applicants’ application for annulment was struck off the list of the Third Section of the Supreme Administrative Court and brought for a hearing before its Grand Chamber on 4 May 2018. The application was subsequently adjourned anew and scheduled to be heard on 21 September 2018 before the Plenary due to its importance, so that it could be heard jointly with another two applications for annulment lodged by other individuals against the same ministerial decisions as those challenged by the applicants. The other applications, brought by parents of students, a theology teacher, a diocese, a metropolitan bishop and an association, requested the annulment of the same ministerial decisions and syllabuses, but on grounds that were diametrically opposed to those relied on by the applicants. In these applications, the applicants, identifying their religious affiliation as Orthodox Christian, complained, inter alia, that the disputed new religious education programme for the school year 2017/18 sought to “transform the course from an Orthodox confessional one into a ‘religiology’ course ( θρησκειολογικό )”, in breach of Articles 4 and 13 of the Constitution and the applicable relevant legislation. 15. The Church of Greece intervened before the Supreme Administrative Court. In their intervention, the Church of Greece stated that their representatives had visited the official State committee six times during the drafting of the new religious education course. They also stated that they wanted the course to be of a confessional nature, as ruled by the Supreme Administrative Court in its judgment no. 660/2018. RELEVANT DOMESTIC LAW AND PRACTICEThe Constitution The Constitution The Constitution 16. The relevant Articles of the Constitution read as follows: Article 3 § 1 “The dominant religion in Greece is that of the Eastern Orthodox Church ....” Article 4 § 1 “All Greeks are equal before the law.” Article 13 § 1 “Freedom of conscience in religious matters is inviolable. The enjoyment of personal and political rights shall not depend on an individual’s religious beliefs. ...” Article 16 § 2 “Education constitutes a basic mission for the State and shall aim at the moral, intellectual, professional and physical training of Greeks, the development of national and religious conscience and at their formation as free and responsible citizens.” Other legislative texts 17. The current Law on Education (Law no. 1566/1985 – “the Education Act”) states that the course entitled “Orthodox Christian Instruction” is mandatory for all schoolchildren throughout primary and secondary education and includes the objective that students should be helped: “[to] develop into free, responsible, democratic citizens ... in whom is instilled faith in their homeland and the genuine elements of Orthodox Christian tradition. Freedom of their religious conscience is inviolable.” 18. Section 22 of Law no. 344/1976 on civil status reads as follows: “1. A birth certificate ... shall contain: ... b. the place, time, day, month and year of birth. c. the sex of the infant and his or her birth order. ... e. the name, surname, nationality, religion, occupation, residence and registration details in the parents’ register ...” 19. Parents must provide a copy of their child’s birth certificate to the school. “Religion” as a subject is compulsory in primary, middle and high school, as well as in certificates of studies, under the relevant ministerial decisions. 20. The relevant sections of Law no. 1599/1986 on relations between the State and its citizens provide as follows: Section 8 Solemn Declaration ( Υπεύθυνη δήλωση ) “1. Facts or elements not evidenced by an identity card or the corresponding documents referred to in section 6 may be brought before any public authority or department with a solemn declaration ... ... 4. Public sector services which are subject to a solemn declaration can check their accuracy by verifying them against the records of other services.” Section 22(6) False Solemn Declaration “Any person knowingly declaring false facts or denying or concealing the truth with a written statement under section 8 shall be punished by imprisonment of at least three months ...” 21. Article 37 of the Code of Criminal Procedure reads as follows: “1. Investigating officials shall promptly inform the competent public prosecutor of any information that they have received in any way whatsoever of an offence [subject to public prosecution]. 2. Other civil servants, as well those to whom the exercise of a public service has been assigned temporarily, are under the same obligation for the offences referred to in paragraph 1 if they have been informed of them in the exercise of their duties.” 22. Section 105 of the Introductory Law to the Civil Code reads as follows: “The State shall be under a duty to make good any damage caused by the unlawful acts or omissions of its organs in the exercise of public authority, except where the unlawful act or omission is in breach of an existing provision but is intended to serve the public interest. The person responsible and the State shall be jointly and severally liable, without prejudice to the special provisions on ministerial responsibility.” “New School” Programme 23. The “New School” programme was introduced in 2011 by the Minister of Education and Religious Affairs and brought about a series of reforms to the curriculum. In particular, in relation to religion, it sought to introduce a more open and pluralistic approach to its teaching, to reflect the increased religious diversity in Greece following mass immigration into the country. Due to political and social tension over the potential change to religious education classes, the “New School” programme was not formally implemented until the 2017/18 school year. In religious education, the programme included studying the Christian traditions of Europe as well as Judaism, Islam, Hinduism, Buddhism, Taoism and Confucianism, with a special focus on Judaism and Islam. 24. The sole Article of ministerial decision no. 99058 entitled “General and vocational high school religious education programme” sets out the objectives, teaching hours and methods of teaching of the religious education course as follows: “1. General objectives of high school religious education The design of the new high school religious education programme takes into account: - The general and specific objectives of education, in line with the existing legal framework, which is based on the Greek Constitution and the basic laws on education. ... - The scientific recommendations of modern religious teaching, combined with new theories of learning and teaching methodology. - The pedagogical characteristics of teenage students ... - ... - The educational orientation and contents of the new primary and middle school religious education programme. - The prevailing local religious tradition as a fundamental pillar of students’ religious literacy and its wider religious and cultural framework. - The complexity of the contemporary social and cultural fabric, as formed at local, European and global level, and the specific learning and educational needs arising therefrom. Therefore, the objectives of high school religious education are: (a) to develop personal identity, with inputs from religiousness and its critical understanding, whether one is religiously affiliated or not. The perception of self-image and the role of the self in relation to others are important in adolescence and determine adulthood. Personal identity and the emergence of personality depend on “religious conscience”, which the school nurtures freely mainly through religious education. This brings into play the moral development and behaviour of the teenager, since religious education involves an acquaintance with the diverse and complex phenomenon of religion and discusses the moral and existential questions of teenage students ... (b) to foster humanitarian and Hellenic education ... (c) religious literacy ... Knowledge of the framework that generates and shapes the concepts, as well as of their cultural content, is the essence of religious literacy, which is part of multiculturalism in education ... (d) critical religiousness, in the sense of development of holistic intelligence in the education process, in which mind and heart participate and which shapes humans with a “living desire” for justice and democracy. Since man is by nature a being that believes, religious education enables him to “believe well”. (e) acquaintance and communication with the “other”. The student becomes familiar with the multicultural society he or she lives in, becomes aware of its religious elements, as well as the multiplicity of his/her personal identity and its developmental dynamics in its collective and social manifestations ... (f) socialisation, not as passive adoption of the social system but as process of individualisation based on the relationship between personality development and social inclusion ... (g) developing a learning community ... Religious education, through the pedagogical and teaching method as well as its theological content, has great potential to radically promote the creation and development of a community, which, as a concept, is related to the faith and tradition of the country ...” 25. The sole Article of ministerial decision no. 101470 entitled “Primary and middle school religious education programme” sets out the objectives, teaching hours and methods of teaching of the religious education course as follows: “... In particular, it is recognised that the religious [education] course needs to: - provide knowledge and understanding of religious beliefs and experiences; - gear students’ interest towards the variety of religious approaches and moral beliefs inherent in religious experiences; and - encourage students to become sensitive to religion and religious aspects of life. This approach, despite doing away with obsolete practices of confessional exceptionalism, does not give the religious education course a phenomenological cognitive orientation, or make it a formal religiological subject that does not meet the pedagogical characteristics, deeper questions and real interests of students ... Ultimately, this view of the religious education course emphatically raises the question of religious literacy as a crucial aspect of religious education, which contributes to producing citizens with religious consciousness, open to dialogue and diversity. This religious literacy is based on the rules of pedagogical and scientific knowledge and aims at the critical development of students’ religious conscience through the knowledge, values and attitudes it provides about religions and faiths, applying an explorative, interpretative and interactive learning approach. ... 2. Organisation of the religious education course The present proposal concerns a course that, while maintaining its traditional cognitive and pedagogical character, also opens up to the Christian traditions of Europe and other religions. By providing the orientations of this course, we are developing a programme that starts from, and focuses on, the country’s religious tradition, the tradition of the Orthodox Church, as embodied in the cultural monuments of the country. Every student, regardless of religious identity, needs to know the religion of their country of origin or domicile. This is the first and main orientation of the course. The second includes a basic acquaintance with the major Christian traditions in Europe and the world beyond Orthodoxy, such as Roman Catholicism and Protestantism with its main confessions. The third orientation includes elements from major religions beyond Christianity, especially those of most interest to Greek society, namely the monotheistic traditions of Judaism and Islam, as well as religions that occasionally present increased interest. Therefore, it is a broader, theologically documented course that examines in an explorative, critical and dialectical manner the contribution of each religious tradition to civilisation, aiming at promoting religious literacy and students’ awareness of, and speculation about, their own religious beliefs and how these are reflected in the dynamics of social relations. Certainly, it would not be possible for the Greek school not to have a strong focus on Orthodox theology and tradition, which through the religious education course is called on to go even beyond modernity, accepting pluralism and diversity, without however underrating, relativising or abandoning its self-consciousness ... In conclusion, the new programme promotes a religious education proposal that is pedagogically sensitive, has realistic learning objectives, and is flexible and multivalent, based on the applicable legislative framework and meeting modern social needs. It focuses on Orthodox tradition but differs from indoctrination, striking a fair balance between native tradition and otherness, while not turning religious education into a religiology course. 3. [The] general aims and orientations of the religious education course [are]: 1. to build a solid educational background in Christianity and Orthodoxy both as the cultural tradition of Greece and Europe and as a living source of inspiration, faith, morality and meaning ... 2. to provide students, regardless of religious affiliation, with satisfactory knowledge of the nature and the role of the phenomenon of religion, both as a whole and in its various manifestations ... These general aims of the religious education course may be specified in the following educational orientations and objectives/priorities: 1. critically understanding the doctrinal, cultic, existential and cultural expressions of the Orthodox Church, other major Christian confessions, as well as other religions; 2. highlighting the universal values of both Christianity and the other religions of the world; ... 4. approaching religious faith in general and Christianity in particular through multiple criteria; ... 9. respecting everyone’s right to freedom of religion, quest [for religion] and religious self-determination; 10. recognising and respecting each student’s religious and cultural origins; ...” 26. Furthermore, two circulars of the Ministry of Education, Research and Religious Affairs, dated 9 and 20 October 2017 respectively, provided detailed teaching instructions concerning the religious education course in high schools and primary schools for the school year 2017/18. Circular of 23 January 2015 on exemption from the religious education course 27. The circular of the same Ministry dated 23 January 2015 sets out the procedure for exemption from the religious education course as follows: “The religious education course is compulsory for all students (Article 16 § 2 of the Constitution). [It] is taught in primary and middle schools in accordance with the official syllabuses, pursues the general objectives of education and is addressed to all students. However, non-Orthodox Christian students, [that is to say] students with different religious or doctrinal affiliation or non-religious students, who rely on grounds of religious conscience, may be exempted from attending this course. Therefore, exemption from the religious education course is legally granted solely to protect freedom of religious conscience, as enshrined in the Constitution and described in the relevant laws and judgments of the Greek and international courts. Because there have been abuses of the right to exemption from the religious education course on grounds not associated with freedom of religious conscience, the attention of school principals is drawn to the need to verify the documentation [in support of] the grounds relied on by those seeking exemption, cautioning them about the seriousness of the solemn declaration they have filed, before granting the legal exemption to the student concerned, always within the prescribed time-limits. It is necessary for the teacher to countersign the solemn declaration, so that he or she knows which students will be attending the religious education course. Students exempted from the religious education course shall have no right to remain in the classroom during the teaching of the course and may under no circumstances roam inside or outside the school premises or be unjustifiably absent; they shall instead engage in the tasks indicated in this circular. Exemption from the religious education course shall be granted following submission of a solemn declaration under Law 1599/1986 by the student him or herself, if he or she is [over the age of majority], or by both his or her parents (if he or she is a minor), stating that the student is not an Orthodox Christian and therefore relies on grounds of religious conscience, without being required to disclose their religious affiliation, unless they wish to do so.” 28. In February 2015 the Atheist Union, relying on the judgment in the case of Alexandridis v. Greece (no. 19516/06, 21 February 2008), requested the Hellenic Data Protection Authority’s intervention as regards the above circular to protect the rights of parents who, for reasons of conscience, wished their children to be granted an exemption. In August 2015 the Hellenic Data Protection Authority stated that since no religious or non-religious justification had to be provided in the exemption form, the current procedure did not violate Law no. 2472/1997 on the protection of the personal information of students. 29. On 25 September 2015 the then Alternate Minister of Education announced her intention to simplify the exemption process, adding that parents should be allowed to simply ask for their children not to attend religious education classes, with no reference – either positive or negative – to their religion. Following the reaction of the Archbishop of Greece, however, the Alternate Minister revoked her position. The above exemption procedure was maintained in force by Article 25 § 3 of a decision of the Minister of Education, Research and Religious Affairs dated 23 January 2018. 30. According to information provided by the Government, this right of exemption was exercised by 2,467 high school students and 799 primary school students during the school year 2015/16, 4,703 high school students and 978 primary school students during the school year 2016/17 and 2,859 high school students and 876 primary school students during the school year 2017/18. | This case concerned compulsory religious education in Greek schools. The applicant parents complained that if they had wanted to have their daughters exempted from religious education, they would have had to declare that they were not Orthodox Christians. Furthermore, they complained that the school principal would have had to verify whether their declarations were true and that such declarations were then kept in the school archives. |
643 | Journalists and publishing companies | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant is a journalist by profession. On 15 October 2003 he published an article in the weekly magazine L ’ Illustré entitled “ Drame du Grand-Pont à Lausanne – la version du chauffard – l ’ interrogatoire du conducteur fou ” (“Tragedy on the Lausanne Bridge – the reckless driver ’ s version – Questioning of the mad driver”). The article in question concerned a set of criminal proceedings against M.B., a motorist who had been remanded in custody after an incident on 8 July 2003 in which he had rammed his car into pedestrians, before throwing himself off the Lausanne Bridge (Grand-Pont). The incident, in which three people had died and eight others had been injured, had caused much emotion and controversy in Switzerland. The article began as follows. “Surname: B. First name: M. Born on 1 January 1966 in Tamanrasset (Algeria), son of B.B. and F.I., resident in Lausanne, holder of a category C licence, spouse of M.B. Profession: nursing assistant ... It is 8.15 p.m. on Tuesday 8 July 2003, in the austere premises of the Lausanne criminal investigation department. Six hours after his tragic headlong race along the Lausanne Bridge, resulting in three deaths and eight casualties, this reckless driver is alone for the first time, facing three investigators. Will he own up? In fact he doesn ’ t actually seem to realise what is happening, as if oblivious to the events and all the hubbub around him. The man who upset the whole of Lausanne this fine summer day is not very talkative. This Algerian citizen is withdrawn, introverted, inscrutable, indeed completely impenetrable. And yet the questions are flying from all sides. What were the reasons for this ‘ accident ’, one of the policemen rather clumsily writes, as if he had already formed his opinion. Four words in reply: ‘ I do not know ’ .” 9. The article continued with a summary of the questions put by the police officers and the investigating judge and M.B. ’ s replies. It also mentioned that M.B. had been “charged with premeditated murder [ assassinat ] and, in the alternative, with murder [ meurtre ], grievous bodily harm, endangering life and serious traffic offences”, and that he “appear[ed] to show no remorse”. The article was accompanied by several photographs of letters which M.B. had sent to the investigating judge. It ended with the following paragraph. “From his prison cell, M.B. now spends his time sending letters to the investigating judge ...: on being taken into custody he asked for his watch to be returned and requested a cup for his coffee, some dried fruit and chocolate. On 11 July, three days after the events, he even asked to be temporarily released for ‘ a few days ’. ‘ I would like to phone my big brother in Algeria ’, he subsequently begged. He finally announced on 11 August that he had come to a ‘ final decision ’ : he dismissed his lawyer, Mr M.B., on grounds of ‘ lack of trust ’. Two days later, another letter: could the judge send him ‘ the directory of the Bar Association of the Canton of Vaud ’ to help him find a different defence lawyer? However, with all the recurrent lies and omissions, the mixture of naivety and arrogance, amnesia and sheer madness characterising all these statements, surely M.B. is doing everything in his power to make himself impossible to defend?” 10. The article also included a brief summary entitled “He lost his marbles...” (“ Il a perdu la boule... ”), and statements from M.B. ’ s wife and from his doctor. 11. It appears from the file that the applicant ’ s article was not the only piece to have been published on the Lausanne Bridge tragedy. The authorities responsible for the criminal investigation had themselves decided to inform the press of certain aspects of the investigation, which had led to the publication of an article in the Tribune de Genève on 14 August 2003. 12. M.B. did not lodge a complaint against the applicant. However, criminal proceedings were brought against the applicant on the initiative of the public prosecutor for having published secret documents. It emerged from the investigation that one of the parties claiming damages in the proceedings against M.B. had photocopied the case file and lost one of the copies in a shopping centre. An unknown person had then brought the copy to the offices of the magazine which had published the impugned article. 13. By an order of 23 June 2004, the investigating judge sentenced the applicant to one month ’ s imprisonment, suspended for one year. 14. Following an application by the applicant to have the decision set aside, the Lausanne Police Court, by a judgment of 22 September 2005, replaced the prison sentence with a fine of 4,000 Swiss francs (CHF) (approximately 2,667 euros). At the hearing on 13 May 2015, in reply to a question from the Court, the applicant ’ s representative stated that the sum of CHF 4,000 had been advanced by his client ’ s employer and that his client was intending to refund it after the proceedings before the Court. He also confirmed that the amount set by the criminal court had taken account of the applicant ’ s previous record. 15. The applicant lodged an appeal on points of law. His appeal was dismissed on 30 January 2006 by the Criminal Court of Cassation of the Canton of Vaud. 16. The applicant lodged a public-law appeal and an appeal on grounds of nullity with the Federal Court, which on 29 April 2008 dismissed the appeals. Its decision was served on the applicant on 9 May 2008. The relevant passages from the decision follow. “7. In short, the appellant submits that his conviction for a breach of Article 293 of the Criminal Code is contrary to federal law. He does not challenge the fact that the information which he published falls within the ambit of Article 293 of the Criminal Code. He does, on the other hand, submit, under an interpretation of Articles 293 and 32 of the Criminal Code in the light of the principles inferred from Article 10 ECHR by the European Court of Human Rights, that having received that information in good faith without obtaining it unlawfully, he had the duty as a professional journalist, under Article 32 of the Criminal Code, to publish it owing to what he sees as the obvious interest of the so-called ‘ Lausanne Bridge ’ case to the general public in French-speaking Switzerland. 7.1. In accordance with Article 293 of the Criminal Code (Publication of secret official deliberations), anyone who, without being entitled to do so, makes public all or part of the documents, investigations or deliberations of an authority which are secret by law or by virtue of a decision taken by that authority, acting within its powers, will be punished by a fine (paragraph 1). Complicity in such acts is also punishable (see paragraph 2). The court may decide not to impose any penalties if the secret thus made public is of minor importance (see paragraph 3). According to case-law, this provision proceeds from a formal conception of secrecy. It is sufficient that the documents, deliberations or investigations in question have been declared secret by law or by virtue of a decision taken by the authority, or in other words that there has been an intention to keep them from becoming public, regardless of the type of classification selected (for example, top secret or confidential). On the other hand, strict secrecy presupposes that the holder of the specific information wishes to keep it secret, that there is a legitimate interest at stake, and that the information is known or accessible only to a select group of persons (see ATF [Judgments of the Swiss Federal Court] 126 IV 236, point 2a, p. 242, and 2c/aa, p. 244). This state of affairs was not altered by the entry into force of paragraph 3 of this Article on 1 April 1998 (RO [ Recueil officiel – Official Collection of Federal Statutes] 1998 852 856; FF [ Feuille fédérale ] 1996 IV 533). That rule concerns not secrets in the substantive sense but rather instances of futile, petty or excessive concealment (see ATF 126 IV 236, point 2c/bb, p. 246). In order to exclude the application of paragraph 3, the court must therefore first of all examine the reasons for classifying the information as secret. It must, however, do so with restraint, without interfering with the discretionary power wielded by the authority which declared the information secret. It is sufficient that this declaration should nonetheless appear tenable vis-à-vis the content of the documents, investigations or deliberations in issue. Moreover, the journalists ’ viewpoint on the interest in publishing the information is irrelevant (see ATF 126 IV 236, point 2d, p. 246). In its Stoll v. Switzerland judgment of 10 December 2007, the European Court of Human Rights confirmed that this formal conception of secrecy was not contrary to Article 10 ECHR inasmuch as it did not prevent the Federal Court from determining whether the interference in issue was compatible with Article 10 ECHR, by assessing, in the context of its examination of Article 293, paragraph 3, of the Criminal Code, the justification for classifying a given piece of information as secret, on the one hand, and weighing up the interests at stake, on the other (see Stoll v. Switzerland [GC], no. 69698/01, §§ 138-39, ECHR 2007-V). 7.2. In the present case the offence with which the appellant is charged concerned the publication of records of interviews and correspondence contained in the case file of a live criminal investigation. In pursuance of Article 184 of the Code of Criminal Procedure of the Canton of Vaud (CPP/VD), all investigations must remain secret until their final conclusion (see paragraph 1). The secrecy requirement relates to all the evidence uncovered by the investigation itself as well as all non-public decisions and investigative measures (see paragraph 2). The law also specifies that the following are bound by secrecy vis-à-vis anyone who does not have access to the case file: the judges and judicial staff (save in cases where disclosure would facilitate the investigation or is justified on public-order, administrative or judicial grounds; see Article 185 CPP/VD), and also the parties, their friends and relatives, their lawyers, the latter ’ s associates, consultants and staff, and any experts and witnesses. However, disclosure to friends or relatives by the parties or their lawyer is not punishable (see Article 185a CPP/VD). Lastly, the law provides for a range of exceptions. As an exception to Article 185, the cantonal investigating judge and, with the latter ’ s agreement, the judge responsible for the preliminary inquiry or senior police officers specially appointed by the cantonal government [ Conseil d ’ État ] (see Article 168, paragraph 3) may inform the press, radio or television about a pending investigation if so required by the public interest or considerations of fairness, particularly where public cooperation is required to shed light on an offence, in cases which are particularly serious or are already known to the general public, or where erroneous information must be corrected or the general public reassured (see Article 185b, paragraph 1, CPP/VD). The present case therefore concerns secrecy imposed by the law rather than by an official decision. 7.3. As a general rule, the reason for the confidentiality of judicial investigations, which applies to most sets of cantonal criminal proceedings, is the need to protect the interests of the criminal proceedings by anticipating risks of collusion and the danger of evidence being tampered with or destroyed. Nevertheless, the interests of the accused must not be disregarded either, particularly vis-à-vis the presumption of innocence and, more broadly, the accused ’ s personal relations and interests (see Hauser, Schweri and Hartmann, Schweizerisches Strafprozessrecht, 6th ed., 2005, § 52, no. 6, p. 235; Gérard Piquerez, op. cit., § 134, no. 1066, p. 678; Gérard Piquerez, Procédure pénale suisse: manuel, 2nd ed., 2007, no. 849, pp. 559 et seq.), as well as the need to protect the opinion-forming process and the decision-making process within a State authority, as protected, precisely, by Article 293 of the Criminal Code (see ATF 126 IV 236, point 2c/aa, p. 245). The European Court of Human Rights has already had occasion to deem such a purpose legitimate in itself. The aim is to maintain the authority and impartiality of the judiciary in accordance with the wording of Article 10 § 2 ECHR, which also mentions the protection of the reputation or rights of others (see Weber v. Switzerland, 22 May 1990, § 45, Series A no. 177, and Dupuis and Others v. France, no. 1914/02, § 32, 7 June 2007). Furthermore, in so far as the impugned publication concerned excerpts from records of interviews of the accused and reproduced certain letters sent by the latter to the investigating judge, this evidence can validly be classified secret, by prohibiting public access to it, as provided by the legislation of the Canton of Vaud. This is the inescapable conclusion as regards the records of interviews of the accused, as it would be inadmissible to allow such documents to be analysed in the public sphere, before the conclusion of the investigation, before the trial and out of context, in a manner liable to influence the decisions taken by the investigating judge and the trial court. It is also the only possible conclusion as regards the letters sent by the accused to the investigating judge, which focused on practical problems and criticisms of his lawyer (see Police Court judgment, point 4, p. 7). We might point out here that it appears from the impugned publication – which the cantonal authorities did not reproduce in full in their decisions, although they did refer to it and its content is not disputed – that the aforementioned practical problems concerned requests for temporary release and for access to personal effects (letters of 11 July 2003), for a change of cell (letter of 7 August 2003) and for authorisation to use the telephone (letter of 6 August 2003). Regardless of the guarantee of the presumption of innocence and the inferences concerning the detainee ’ s character which might be drawn during the criminal proceedings from such correspondence, the detainee, whose liberty is considerably restricted, even in respect of everyday acts relating to his private life, or indeed intimate sphere, can expect the authority restricting his liberty to protect him from public exposure of the practical details of his life as a remand prisoner and as a person facing charges (see Article 13 of the Constitution). It follows that in the instant case the information published by the appellant, in so far as it concerned the content of the records of his interviews and his correspondence with the investigating judge, cannot be described as a secret of minor importance for the purposes of Article 293, paragraph 3, of the Criminal Code. That being so, the impugned publication constituted the factual elements of the offence provided for in Article 293, paragraph 1, of the Criminal Code. 7.4. Moreover, the information in question may be described as being secret in substantive terms because it was only accessible to a restricted number of persons (the investigating judge and the parties to the proceedings). Furthermore, the investigating authority was desirous to keep them secret, with not only a legitimate interest in doing so but an obligation under the Cantonal Code of Criminal Procedure, the justification for which was mentioned above (see point 7.3 above). 7.5. Therefore, the only remaining point at issue is the existence of justification. 8. In short, the appellant submits that he had the professional duty (under former Article 32 of the Criminal Code) as a journalist to publish the information in question because of what he describes as the obvious interest in the ‘ Lausanne Bridge ’ case for the population of French-speaking Switzerland. He considers that in the light of European case-law, the basic assumption should be that publication is justified in principle unless there is a pressing social need to maintain secrecy. From the standpoint of good faith, he submits that Article 32 should apply to journalists who are not responsible for the indiscretion committed by a third party and who receive information without committing any offence themselves other than the breach of secrecy stemming from the publication. Lastly, he contends that the mode of publication is not a relevant criterion. 8.1. As regards the former point, the cantonal court found that while the accident of 8 July 2003, the circumstances of which were undoubtedly unusual, had triggered a great deal of public emotion, it had nevertheless, in legal terms, been simply a road accident with fatal consequences, and did not in itself entail any obvious public interest. It was not a case of collective trauma on the part of the Lausanne population, which would have justified reassuring the citizens and keeping them informed of the progress of the investigation (see judgment appealed against, point 2, p. 9). It is true that the ‘ Lausanne Bridge case ’ attracted extensive media coverage (see Police Court judgment, point 4, p. 8, to which the cantonal judgment refers (judgment appealed against, point B, p. 2)). However, this circumstance alone, alongside the unusual nature of the accident, is insufficient to substantiate a major public interest in publishing the confidential information in question. Unless it can be justified per se, the interest aroused among the public by media coverage of events cannot constitute a public interest in the disclosure of classified information, because that would mean that it would be sufficient to spark the public ’ s interest in a certain event in order to justify the subsequent publication of confidential information likely to maintain that interest. Furthermore, such a public interest is manifestly lacking as regards the letters that were published. As we have seen above (see point 7.3 above), these letters virtually exclusively concerned criticisms levelled by the accused against his lawyer and such practical problems as requests for temporary release, for access to personal effects, to change cells and to use the telephone. This type of information provides no relevant insights into the accident or the circumstances surrounding it. It relates to the private life, or indeed intimate sphere, of the person in custody, and it is difficult to see any interest which its publication could satisfy other than a certain kind of voyeurism. The same applies to the appellant ’ s requests to the investigating judge in relation to his choice of defence lawyer. Nor is it clear, as regards the records of his interviews, what political question or matter of public interest would have arisen or been worth debating in the public sphere, and the cantonal authorities explicitly ruled out the existence of any collective trauma which might have justified reassuring or informing the population. This finding of fact, which the appellant has not disputed in his public-law appeal, is binding on this court (see section 277 bis of the Federal Criminal Procedure Act). That being the case, the appellant fails to demonstrate the ‘ obvious ’ interest to the general public of the information published, and the cantonal court cannot be criticised for having concluded that at the very most, such an interest involved satisfying an unhealthy curiosity. 8.2. The other two factors relied upon by the appellant concern his behaviour (good faith in access to information and mode of publication). 8.2.1. It should first of all be noted that Article 293 of the Criminal Code punishes only the disclosure of information, irrespective of how the perpetrator obtained it. Moreover, even under Article 10 ECHR, the European Court does not attach decisive importance to this fact when considering whether applicants have fulfilled their duties and responsibilities. The determining fact is rather that they could not claim in good faith to be unaware that disclosure of the information was punishable by law (see Stoll, cited above, § 144, and Fressoz and Roire v. France [GC], no. 29183/95, ECHR 1999 ‑ I). This point is well-established in the present case (see section B above). 8.2.2. On the other hand, the mode of publication can play a more important role in the context of safeguarding freedom of expression. While the European Court of Human Rights reiterates that neither it, nor the domestic courts for that matter, should substitute their own views for those of the press as to what technique of reporting should be adopted by journalists, in weighing up the interests at stake it nevertheless takes account of the content, vocabulary and format of the publication, and of the headings and sub-headings (whether chosen by the journalist or the editors), and the accuracy of the information (see Stoll, cited above, §§ 146 et seq., especially 146, 147 and 149). In the instant case the cantonal court ruled that the tone adopted by the appellant in his article showed that his main concern was not, as he claims, to inform the general public about the State ’ s conduct of the criminal investigation. The headline of the article ( ‘ Questioning of the mad driver ’, ‘ the reckless driver ’ s version ’ ) already lacked objectivity. It suggested that the case had already been tried in the author ’ s view, in the sense that the fatalities on the Lausanne Bridge had been caused not by an ordinary motorist but by a ‘ mad driver ’, a man ‘ oblivious to the events and all the hubbub around him ’. The journalist concluded by wondering whether the driver was in fact doing his best to ‘ make himself impossible to defend ’. The manner in which he quoted the excerpts from the records of interviews and reproduced the letters sent by the defendant to the judge pointed to the motives of the author of the impugned article: he confined himself to sensationalism, his modus operandi being exclusively geared to satisfying the relatively unhealthy curiosity which anyone is liable to feel about this type of case. Readers of this highly biased publication would have formed an opinion and subjectively prejudged the future action to be taken by the courts regarding this case, without the least respect for the principle of presumption of innocence (see judgment appealed against, point 2, pp. 9 et seq.). The cantonal court concluded that this factor did not indicate that the public interest in receiving information prevailed. That court cannot be criticised on that account. 8.3. The appellant also submitted that the records of interviews and the letters would in any case be mentioned in subsequent public hearings. He inferred from this that preserving the confidentiality of this information could therefore not be justified by any ‘ pressing social need ’. However, the mere possibility that the secrecy of criminal investigations might be lifted during a subsequent phase of proceedings, particularly during the trial, which is generally subject to the publicity principle, does not undermine the justification for keeping judicial investigations confidential, because the primary aim is to protect the opinion-forming and decision-making processes on the part not only of the trial court but also of the investigating authority, until the completion of this secret phase of proceedings. Moreover, far from being neutral and comprehensive, the publication in issue included comments and assessments which presented the information in issue in a particular light, without providing the opportunities for adversarial argument which are the very essence of proceedings in trial courts. 8.4. Lastly, the appellant did not explicitly criticise the amount of the fine imposed on him. Nor did he challenge the refusal to grant him a probationary period after which the fine would be struck out (former Article 49, point 4, in conjunction with former Article 106, paragraph 3, of the Criminal Code) under Swiss law. From the angle of weighing up the interest in the interference, we might simply note that the fine imposed, the amount of which took into account a previous conviction dating back to 1998 (imposition of a CHF 2,000 fine, which could be struck out after a two-year probationary period, for coercion and defamation), does not exceed half the amount of the appellant ’ s monthly income at the material time (see Police Court judgment, point 1, p. 5), and there is nothing to suggest that his freelance status at the time of the first-instance judgment led to any significant drop in his earnings. It should also be pointed out that at CHF 4,000 the amount of the fine is below the statutory maximum set out in former Article 106, paragraph 1, of the Criminal Code (as in force until 31 December 2006), and that this maximum amount, set by the legislature more than thirty years ago, was not revised until the entry into force of the new general section of the Criminal Code, which now sets a figure of CHF 10,000 (see Article 106, paragraph 1, of the Criminal Code as in force since 1 January 2007). Furthermore, the sanction for the offence with which the appellant is charged did not prevent him from expressing his views, since it was imposed after the article had been published (see Stoll, cited above, § 156). That being the case, it is unclear, in view of the nature of the offence charged (the least serious in the classification set out in the Swiss Criminal Code), the amount of the fine and the time of its imposition, how the sanction imposed on the applicant could be regarded as a form of censorship. 8.5. It follows from the foregoing that the appellant disclosed a secret within the meaning of Article 293, paragraph 1, of the Criminal Code and that he cannot rely on any justifying factor in his favour. The decision appealed against does not violate federal law as interpreted in the light of the Convention provisions relied upon by the appellant.” | This case concerned the fining of a journalist for having published documents in breach of the confidentiality of the judicial investigation in criminal proceedings that had been brought against a driver who had been remanded in custody for crashing into a group of pedestrians, killing three and injuring a further eight, before jumping off a bridge. |
177 | Right to life (Article 2 of the European Convention on Human Rights) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1984 and lives in Tirana. A. Background of the case 6. On 29 July 2009, at around 4 p.m., while walking along a back street in Tirana, the applicant suffered grievous injuries in an acid attack by an unidentified assailant. She was taken immediately to Tirana’s Mother Teresa Hospital to receive urgent medical treatment. The hospital record read that 25% of the applicant’s body – mainly her face and upper body – had been burned ( combusio corporis, facies et extremitas superior ) owing to the acid attack and that she was in a critical condition. On 1 August 2009 she was taken to Italy for more specialised hospital treatment. The hospital record of 2 October 2009 read that the applicant had medium to deep facial, neck and body burns ( ustioni intermedio ‑ profonde di volto, collo, tronco, arti superiori ed inferiori ) caused by sulphuric acid. According to the record of her hospital treatment in Italy, between 2009 and 2012 the applicant underwent at least fourteen operations. The costs for such operations were borne by the regions of Apulia and the Marches in Italy, as well as by the applicant. She suffered from anxiety and from psychological problems and was scared to go back to Albania. She was granted sick leave by the Albanian authorities for at least seven months but it appears that she was unable to work for several years. B. Criminal investigation into the attack of 29 July 2009 7. On 29 July 2009 the prosecutor opened a criminal investigation into the acid attack under Article 88 of the Criminal Code (see paragraph 64 below). The applicant made a statement in which she said she had not recognised her assailant. She stated that she was not in a dispute with anyone, but suspected that the attack had been organised by her former husband (E.A.) as an act of revenge and a continuation of past domestic violence. In the past he had threatened the applicant, saying that he would kill her. She and E.A. had finally separated after he had refused to allow her to attend a specialised training course in Italy. In addition she stated that at the time of the attack, the assailant had been wearing a brown/beige hat and black sunglasses and a black shirt. The assailant had thrown a substance over her face and body and had then walked away. She had sensed that her face and chest were getting burnt and her clothes were melting. The substance had also been thrown over her colleague, who had been with her. She further stated that E.A. had been imprisoned in Italy and that he had friends with criminal records. 8. On the same day the prosecutor obtained a statement from the applicant’s colleague, who had also suffered grievous injuries. The colleague stated that she too had not recognised the assailant. The assailant had been wearing dark trousers and a dark shirt and had been holding a container with a red substance inside. While walking towards her and the applicant, he had opened the container and had thrown the contents all over them. She stated that she was not in a dispute with anyone and that she had heard from the applicant’s family members that they had suspicions about the applicant’s former husband. She also stated that she had seen other people at the scene of the attack and a man on the main street. 9. On 29 July and 6 August 2009 E.D., one of the applicant’s colleagues, gave a statement declaring that he had been unable to see the perpetrator’s face because he had had his back to him. He gave a description of him as wearing a red shirt, white striped jeans and sunglasses. He further described how he had helped the applicant and the other victim and that, together with another colleague, E.S., he had sent both of them to hospital. He also stated that other people had arrived at the scene and had tried to help the victims. The aforementioned colleague E.S. stated that she had helped to get the victims to hospital. She had not seen the perpetrator at all. 10. On 29 July 2009 B.D., the applicant’s sister, stated that her sister had told her in the past that E.A. was jealous and used violence against her. She had wanted to attend a specialised training course in Italy but E.A. had not allowed her. He had threatened to kill her if they were to get divorced. She also stated that her cousin, R.T., had met E.A. to give some items back to him on behalf of the applicant. E.A. had told R.T. that he would not cause the applicant any problems, and that she could continue with her life as normal. B.D. also stated that in May 2009 she had met E.A. and his mother in the presence of her sister to discuss the continuation of their relationship. According to B.D., it had been obvious from the discussions they had that E.A. had used violence against her sister. On 21 December 2009 B.D. made another statement in which she confirmed her statements of 29 July 2009 and said that she still had suspicions that E.A. might have committed the attack. 11. On 29 July 2009 R.T., the applicant’s cousin, stated that he was aware that E.A. had used violence against the applicant and had been jealous. He had met E.A. two months earlier and had given some items back to him on behalf of the applicant. E.A. had told R.T. that he would not contact the applicant or cause her any problems. 12. On 29 July 2009 L.D., the applicant’s brother-in law, stated that he had learnt from his wife, B.D., that his sister-in-law had been subjected to violence and insults by her husband. 13. On 29 July 2009 V.T., the applicant’s mother, stated that E.A. had been involved in criminal offences such as the theft of safe deposits and murder. He had used violence against the applicant. Once, he had locked her in his apartment for three days, preventing her from going to work, as revenge for threatening to report him to the police. After the divorce they had had some arguments concerning certain items that they had to return to each other. 14. On 29 July 2009 another eyewitness, G.D., who had been having a coffee in a nearby café at the time of the attack, stated that he had gone to help the applicant and the other victim after hearing screams. He had not seen who had committed the assault. He had seen a container in the street and had kicked it over. According to him, the substance which spilled onto the street had been acid. 15. In a statement provided on the same day, E.A. stated that on 29 July 2009 he had been in Durres until 6 p.m. He further stated that he and the applicant had divorced in May 2009 because they were having problems; he had disagreed with the applicant when she had wanted to go to Italy to attend a specialised professional course. He further stated that the divorce had gone smoothly and that since then he had had no contact with the applicant. He did not have any information as to who could have been the perpetrator. He also gave information about the people he knew, namely family members, friends and cousins. 16. On 29 July 2009 F.P., E.A.’s mother, stated that her son and the applicant had had good relations, but they had divorced in 2009 because the applicant had wanted to attend a specialised training course in Italy and E.A. had not consented to the idea. She further stated that on the day they got divorced she had met her son, the applicant and the applicant’s sister to find a solution. However, her son and the applicant had decided to end their relationship. Since then, as far as she was aware, they had not had any contact. She confirmed that her son had been in Durres the whole day. E.A.’s cousin, L.A., also stated that as far as he was aware his cousin did not have any dispute with the applicant. 17. On 29 July 2009 a judicial police officer conducted an on-site examination and secured some evidence, including the applicant’s and her colleague’s clothes and a glass container containing a small quantity of a red liquid substance. 18. On 29 July and 1 October 2009 the judicial police officer decided that several expert reports should be drawn up, namely a forensic medical report, a fingerprint expert report on the glass container used for throwing the acid, a chemical and toxicology expert report on the glass container in order to identify the liquid substance and the method whereby the liquid had been produced, and a chemical and toxicology expert report on the applicant’s and the other victim’s clothes to identify the liquid substance and to determine whether the damage to the clothes had occurred as a result of the use of that substance. 19. On 29 July 2009, interception of E.A.’s telephone conversations over the period from 29 July to 12 August 2009 was ordered by the prosecutor and was subsequently approved by the district court on 30 July 2009. On 13 August 2009 the general prosecutor sent the results of the interception to the district prosecutor. 20. On 30 July 2009 the judicial police officer referred the criminal offence of causing serious intentional injury attributed to E.A. to the district prosecutor’s office. He noted that on 29 July 2009 in a back street near the Ministry of Justice, an unidentified person had thrown acid over the applicant and another victim, leaving both of them in a critical condition. He considered that on the basis of the evidence in the file, as well as statements made by the applicant, the other victim and other family members, it was apparent that there were suspicions that E.A. might have committed the attack. 21. On 31 July 2009 the applicant made another statement, saying that she still had suspicions that E.A. had wanted revenge because of the divorce. She also added that in the past he had committed criminal offences – namely thefts from safe deposits and houses − and that he had possessed a gun. 22. On 3 August 2009 the district prosecutor ordered that a number of procedural actions be taken, such as the examination of the fingerprint expert report on the container used for throwing the acid and that its results be compared with fingerprints of other suspected persons, as well as any other person who was included in the Central Criminology Laboratory’s list of suspected persons; the examination of the forensic medical report and other expert reports; the questioning of every person with any knowledge about the event; the examination of telephone interceptions; the obtaining of the victims’ and E.A.’s telephone records, as well as those of any other person who could be concerned with the investigation; the finding and verification on the Internet of telephone numbers used by E.A.; the confiscation of video footage from some nearby cameras, as one of them might have captured and recorded the perpetrator; establishing the origin of the television sets found in E.A.’s apartment (see paragraph 44 below); and any other action deemed appropriate. 23. On 3 August 2009 an expert report prepared by the Institute of Scientific Police ( Instituti i Policisë Shkencore ) concluded that no fingerprints could be identified on the glass container. 24. On 6 August 2009 a forensic report prepared by the Forensic Medicine Institute ( Instituti i Mjekësisë Ligjore ) concluded that 25% of the applicant’s face, abdomen and upper extremities had been burnt, the injuries having been caused by a corrosive substance. It further concluded that on the basis of the medical report alone, it was not possible to give an accurate conclusion concerning the category of the applicant’s injuries. It would therefore be necessary to examine the applicant three months after the date on which she had been injured. 25. On 11 August 2009 Internet research was conducted by the judicial police officer to find the telephone numbers listed in E.A.’s name. On the same day the prosecutor requested that a mobile telephone company provide him with the call log history relating to several of E.A.’s telephone numbers for the period from 25 to 30 July 2009, as well as the location and the area they had covered on 29 July 2009. On 18 August the mobile telephone company submitted the information as requested by the prosecutor. 26. On 15 August and 15 December 2009 further information was requested in respect of some other telephone numbers so as to identify the persons to whom they belonged and who had made telephone calls during the hours when the attack had occurred. On 21 December 2009 the mobile telephone company submitted the information as requested by the prosecutor. In January 2011 two individuals questioned by the judicial police officer stated that they did not have any information about the incident of 29 July 2009. Despite being friends with E.A., they maintained that he had not discussed the event with them. Another person who was questioned stated that she did not know E.A. at all. 27. On 11 August 2009 the district prosecutor requested that video footage be provided by three nearby banks, whose security cameras were believed to have recorded images of the events of 29 July 2009. On 13 and 18 August 2009 two banks submitted video footage on CD-ROM. The record written by the judicial police officer on 24 September 2009 on the examination of evidence stated that the CD-ROMs had been examined with a view to identifying any person who had the same characteristics as the person described in the statements given by witnesses. They were also examined by the applicant and her colleague. However, nobody could be identified as the suspected perpetrator. 28. On 9 September 2009 another witness, G.V., the applicant’s colleague, was questioned and described how a man whom she had seen near the site was dressed. According to her, the assailant was wearing a dark hat, sunglasses and dark clothes. On the same day another witness, Y.K., stated that she had seen two young men holding a glass container, one of whom had been wearing a red shirt and the other one a black shirt. 29. On 16 December 2009, E.K. ‒ E.A.’s sister ‒ made a statement before the judicial police officer in which she confirmed that on 29 July 2009 E.A. had been in Durres with her. She stated that the applicant and E.A. had had a good relationship. They had divorced because the applicant had wished to go to Italy to attend a specialised training course and E.A. had disagreed with the idea for his own personal reasons. 30. On 30 September 2009 the Faculty of Natural Sciences ( Fakulteti i Shkencave Natyrore ) informed the judicial police officer that it was unable to draw up the requested chemical expert report (most probably referring to the expert report to be drawn up concerning the red substance – see paragraph 18 above) as it lacked the necessary specialised equipment. 31. On 23 October 2009 the Institute of Scientific Police informed the judicial police officer that it could not compile an expert report on the applicant’s and the other victim’s clothes since this did not fall within its sphere of competence. 32. On 7 December 2009 the judicial police officer decided that a further forensic report should be compiled by the Forensic Medicine Institute in view of the conclusions drawn in the report of 6 August 2009 (see paragraph 24 above). On 15 December 2009 the doctor replied that the report could be prepared once he had at his disposal a copy of the applicant’s medical reports prepared by the Italian hospital. 33. On 18 December 2009 a group of experts from the Forensic Medicine Institute prepared another forensic report. They noted that they could not examine the applicant as she was in Italy undergoing specialist treatment and they had not been able to examine the medical reports from the Italian hospital. They reiterated the conclusion stated in the forensic report of 6 August 2009. They concluded that, on the basis of the documents at their disposal, at the time the injuries were inflicted, they were so grievous that they would have put the applicant’s life in danger had no specialist medical aid been given. 34. On 2 February 2010 the district prosecutor, in a reasoned decision, decided to stay, in accordance with Article 326 of the Code of Criminal Procedure (see paragraph 59 below), the investigation concerning the criminal offence of causing serious intentional injury and referred the case file to the Tirana Police Directorate for further actions to identify the perpetrator. The decision described all the evidence that had been obtained as well as statements that had been given by the applicant and other persons. It stated, in so far as relevant, the following: “[F]orensic reports concluded that 25% of the applicant’s face, abdomen and upper extremities were burnt. The injuries had been caused by a corrosive substance. The injuries were so grievous that the applicant’s life would have been in danger if no specialist medical aid had been given ... the fingerprint expert report concluded that no fingerprints could be identified ... the [Faculty of Natural Sciences] replied that it lacked the specialist equipment needed to produce the relevant expert reports ... the [Institute of Scientific Police] replied that it was not its duty to carry out the requested expert report concerning the examination of the clothes the applicant was wearing at the time of the attack ... after examination of the video footage from two nearby cameras, nobody could be identified as a suspect in connection with the crime, taking into consideration the features mentioned by the witnesses in their statements; it was not possible to obtain a copy of the CD-ROM from the other bank owing to technical difficulties encountered with its transcription ... the telephone communication intercepts did not reveal any conversation relevant to the investigation ... three other individuals who conducted telephone communications during the period when the assault occurred were questioned, but with no result ... it is apparent that the district prosecutor undertook numerous investigative actions, such as the examination of many items of evidence, as well as the applicant’s questioning. For the above reasons, all possible investigative actions have been carried out, but it has not been possible to identify the perpetrator(s) of the criminal offence ...” 35. No further official communication having been received by the applicant following the launch of the criminal investigation, on 10 March 2012 she authorised the Albanian Centre for the Rehabilitation of Trauma and Torture (“the Centre”) to pursue her case. 36. On 2 April 2012 the Centre sought information from the prosecutor about the progress of the investigation. 37. On 17 April 2012 the prosecutor informed the Centre that the criminal investigation had been stayed and the case file had been transferred to the police for further action in order to identify the assailant. The Centre was informed that it should seek copies of the documents it required from the relevant police authority. 38. On 19 April 2012 the Centre asked the Tirana Police Directorate to provide information about the progress of the investigation. 39. On 23 May 2012 the Tirana Police Directorate informed the Centre that the investigation was ongoing and made available a copy of the medical reports. A copy of the prosecutor’s decision staying the investigation could not be provided without the prosecutor’s prior authorisation. 40. On 5 December 2013 the Centre asked the prosecutor to provide it with a copy of the investigation file. The Centre also urged the prosecutor to find and punish the perpetrator. 41. On 8 January 2014 the prosecutor informed the Centre that the investigation had been stayed because the assailant could not be identified. The case file had been entirely transferred to the police authority, from which the Centre could obtain a copy. 42. The criminal file which was submitted by the Government as part of their observations indicated that an investigation had been opened into the criminal offences of causing serious intentional injury and the production and illegal possession of weapons as provided for in Articles 88 and 279 of the Criminal Code, respectively. On two occasions, on 30 October and 31 December 2009, the district prosecutor had extended the investigation on the grounds that the investigation was complex and the questioning of many individuals and the examination of several other acts were necessary. 43. It appears that until the end of 2015, when the parties filed their written submissions with the Court, the case was still pending before the police authorities; the parties have not provided an update in respect thereof. C. Proceedings concerning the criminal offence of production and illegal possession of weapons 44. On 29 July 2009 E.A.’s apartment was searched and two knives, four television sets, two laptop computers and a camera were found. They were subsequently seized. 45. On 30 July 2009 the district prosecutor attributed to E.A. the criminal offence of production and illegal possession of weapons under Article 279 of the Criminal Code on the grounds that two knives had been found in E.A.’s apartment (see paragraph 64 below). 46. On 30 July 2009 E.A. was arrested in the act of committing the criminal offence of production and illegal possession of bladed weapons. Subsequently, the prosecutor imposed an obligation on him to appear before the judicial police office (“compulsion order” – masë shtrënguese ), which was approved by the district court on 1 August 2009. 47. On 6 August 2009 the Tirana Police Commissariat stated that the items seized in E.A.’s apartment on 29 July 2009 did not match the description of any object that had been stolen in the territory covered by that commissariat. 48. On 11 January 2010 the Ministry of Culture informed the district prosecutor that the two knives were for purely ornamental use. 49. On 2 February 2010 the district prosecutor, in a reasoned decision, discontinued in accordance with criminal procedural law the investigation concerning the criminal offence of production and illegal possession of bladed weapons (see paragraph 61 below). It also ordered that the coercive measure against E.A. be lifted. The decision described all the evidence that had been obtained, as well as the statements given by the applicant and others. It reasoned that since the knives had been found in E.A.’s apartment and not in a public place and that the Ministry of Culture’s letter of 11 January 2010 had stated that they were only for ornamental use, it was clear that no criminal offence had been committed. D. Proceedings concerning the applicant’s claim for damages 50. On 2 May 2012 the applicant, relying on the European Convention on the Compensation of Victims of Violent Crimes (“the European Convention on Compensation to Victims”), lodged a request with the Ministry of Justice seeking compensation from the State as a result of the acid attack (see paragraph 89 below). 51. On 3 September 2012 the applicant, relying on the European Convention on Compensation to Victims and Articles 625, 640 and 641 of the Civil Code, as well as decision no. 12 of 14 September 2007 of the Supreme Court Joint Benches (see paragraph 73 below), lodged a claim for damages with the Tirana District Court against the Ministry of Justice, seeking compensation from the State as a result of the acid attack. She also requested to be exempted from paying the court fees on the grounds of lack of financial means, and to have the amount of the compensation determined by experts. 52. The applicant submitted that she had subsequently withdrawn her claim as she had found it impossible to pay the court fees. 53. On 30 May 2013 the Tirana District Court discontinued the proceedings ( pushimin e gjykimit ) when the applicant and her lawyer failed to appear at the hearing. | This case concerned an acid attack on the applicant in 2009. The applicant suspected that her former husband, whom she accused of domestic violence, was behind the attack. She alleged in particular that the Albanian authorities had failed to take measures to protect her from the acid attack and to conduct a prompt and effective investigation for the identification, prosecution and punishment of her assailant. |
765 | Freedom of expression | 2. The applicant was born in 1941 and lives in Kværndrup. He was represented by Mr Jonas Christoffersen, a lawyer practising in Copenhagen. 3. The Danish Government (“the Government”) were represented by their Agent, Mr Michael Braad, from the Ministry of Foreign Affairs, and their Co ‑ Agent, Ms Nina Holst ‑ Christensen, from the Ministry of Justice. 4. The facts of the case, as submitted by the parties, may be summarised as follows. 5. The applicant worked as a physician until 2010. 6. Around 2015, he founded an association called “Physicians in Favour of Euthanasia” ( Læger for Aktiv Dødshjælp ), for physicians aiming to have euthanasia made lawful in Denmark. In pursuance of this aim, the applicant prepared a guide “Medicines suited for suicide” ( Lægemidler der er velegnede til selvmord ), available on the internet. The guide combined a detailed procedure for how to commit suicide, including a list of about 300 common pharmaceuticals suited to committing suicide, and a description of the dose required to go through with the suicide, possible combinations of pharmaceuticals and caveats about the various pharmaceuticals. The guide also provided advice on how a person could be assured of death by taking the recommended doses of medicines, including by combining different pharmaceuticals or by taking a full dose of a pharmaceutical in combination with a plastic bag over the head and a rubber band around the neck. 7. It was lawful under Danish law to publish such a guide on the Internet or elsewhere. 8. On the basis of a radio interview with the applicant in February 2017 in which he stated, inter alia, that he had assisted a patient with a terminal pulmonary condition in dying by administering the pharmaceutical Fenemal, the Patient Safety Authority ( Styrelsen for Patientsikkerhed ) reported the applicant to the police for violation of section 240 of the Penal Code, prohibiting assisted suicide. Moreover, on 3 March 2017 it withdrew the applicant’s doctor’s licence to practise, with the consequence, among other things, that the applicant could no longer prescribe medications for himself or others. 9. Subsequently, the applicant was charged with two counts of assisted suicide and one count of attempt. 10. By a judgment of 26 September 2018, the District Court of Svendborg ( Retten i Svendborg ) convicted the applicant of one count of assisted suicide and one count of attempt. He was sentenced to 40 days’ imprisonment, suspended. 11. On appeal to the High Court of Eastern Denmark ( Østre Landsret ), by a judgment of 30 January 2019 the applicant was convicted of all three counts and sentenced to 60 days’ imprisonment, suspended. 12. On appeal to the Supreme Court ( Højesteret ), on 23 September 2019 the High Court judgment was upheld. 13. More concretely, in respect of count 1) the applicant was convicted of attempted assisted suicide committed on 23 March 2017, having together with a co-defendant prescribed medications for A, who wanted to commit suicide. The suicide attempt had failed. The applicant stated that A had contacted him and told him that he suffered from neurological diseases. The applicant had spoken to A several times on the telephone, and they had also communicated by email. The applicant had asked the co-defendant to prescribe Fenemal for A; the applicant had known that A would use the medication to commit suicide. The co-defendant confirmed the correctness of this statement and explained that he had been contacted by the applicant, who had asked him to prescribe Fenemal for A as the applicant could not prescribe any medications himself because his doctor’s licence to practise had been withdrawn. A confirmed that he had been in contact with the applicant, who had helped him obtain the required medication. Since his attempted suicide, A had received medications for his physical pain and his anxiety, and his condition had therefore improved. 14. In respect of count 2) the applicant was convicted of assisted suicide committed in the spring of 2017, having prior to B’s death dispensed a dose of Fenemal to him, knowing full well that it was intended for his suicide. B had become paralysed in most of his body following a stroke; he no longer found life worth living and wanted to die. The applicant stated that he had visited B and advised him how to commit suicide in accordance with the guide that he had uploaded to the Internet. Subsequently, he had discussed with another person whether it was possible to procure pills for B, but he did not know whether that person had ever supplied the pills. The applicant had not himself provided any medication for B. According to the statement given by B’s former wife, B had tried to be allowed to go to Switzerland for euthanasia. However, no psychiatrists would issue a medical certificate saying that B was mentally prepared, as required by the Swiss authorities. B’s former wife had then contacted the applicant asking him to help B. They had met with the applicant, who had indicated that he could establish contact with someone who could procure the medication. Subsequently, B’s former wife had received a supply for B, which she handed over to B, who had later stated that he now had what he needed. In May 2017, the family had had a farewell dinner with B, and the next day B’s former wife had received a telephone call from the nursing home and been told that B was fast asleep and that it was not possible to waken him up. B had passed away a couple of days later. 15. In respect of count 3), the applicant was convicted of assisted suicide, committed between 17 July and 6 August 2018. C was 85 years old. She suffered from many infirmities but was not seriously ill. She wished to end her life and had procured the necessary pills herself. On 17 July 2018, she had contacted the applicant by email and asked for his assistance. The applicant and C had exchanged at least nine emails between 17 July 2018 and 8 August 2018. On 19 July 2018 the applicant had asked C which medication she had procured. On 27 July 2018 the applicant had confirmed that the medications at her disposal were excellent and also recommended that she look at the general guide on how to commit suicide, which was available on the website of the network. On 29 July 2018 he was helping her finding the general guide. On 6 August 2018 he confirmed that it was a good idea to combine the medication with a plastic bag over her head, in which connection he had written: “If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.” On 10 August 2018, C had been found dead in her bed with a plastic bag over her head. 16. In its judgment of 23 September 2019, the Supreme Court stated: “Liability for assisted suicide or attempts at assisted suicide By the High Court judgment, [the applicant] was found guilty on two counts of violation of section 240 of the Penal Code for assisted suicide and one count of an attempt at assisted suicide. This case concerns whether, according to the findings of fact of the High Court, the acts performed by [the applicant] as described in the three counts are punishable because they are considered assistance as set out in the provision, and whether the conditions for imposing a sentence for the attempt have been met. In that case, there is also the issue of the length of the sentence. It is a punishable offence under section 240 of the Penal Code to assist another person in ending his or her life, but it is not a punishable offence to attempt to take one’s own life. Accordingly, this provision independently criminalises assisted suicide. The Supreme Court finds that it will be determined based on an interpretation of this provision what kinds of assistance fall within the scope of the liability, for which reason it is not possible simply to use as a basis those kinds of complicity that are punishable under the general rule of law set out in section 23 of the Penal Code as complicity in offences. Minor assistance may fall outside the scope of criminal offences under section 240. As regards count 2), [the applicant] has been found guilty of violation of section 240 of the Penal Code because he procured medications for B prior to B’s death on 7 May 2017, knowing full well that the medications were intended for his suicide. As regards count 1), [the applicant] has been found guilty of attempted violation of section 240 because he procured medications for A, knowing full well that the medications were intended for A’s suicide, which suicide failed, however. The Supreme Court concurs in the finding that [the applicant’s] acts as described in count 1) and count 2) are punishable as assisted suicide as set out in section 240 of the Penal Code. As regards count 1), the Supreme Court concurs in the finding that the conditions for sentencing someone for an attempt have been met as the maximum penalty under section 240 of a fine or imprisonment for a term not exceeding three years makes it possible to sanction attempts, see section 21(3) of the Penal Code. [The applicant’s] submission concerning the legislative history of section 240 cannot lead to a different conclusion. As regards count 3), [the applicant] has been found guilty of having in emails exchanged with C advised her about suicide methods, including by confirming the choice of medications and by confirming that it was a good idea to combine them with a plastic bag and by writing, ‘If you are able to go through with it, you will be 100% certain. Remember in that case that it is necessary to put a rubber band around the neck.’ Thereby, he assisted her in committing suicide by taking medicines and putting a plastic bag over her head and closing it with a rubber band. Opinion of three judges ... concerning count 3): We concur in the finding that by giving advice in his email exchange with C, [the applicant] assisted her in a specific and significant way in committing suicide, and that the advice is not exempt from punishment due to the circumstance that his advice was based on a general guide that had lawfully been uploaded to the website of ‘Physicians in Favour of Euthanasia’. In this context, we have also taken into account that the specific advice offered by [the applicant] to C was suited to a greater extent than the general guide to intensifying her desire to commit suicide. In our opinion, there is no basis for finding that it would be contrary to Article 10 of the European Convention on Human Rights to convict the defendant on this count. Opinion of [two] judges ... concerning count 3): It appears from the case file that C contacted [the applicant] in July 2018 and indicated in her emails that she was 85 years old and suffered from many infirmities, that she wished to end soon and that things had been clarified with her close family. She had procured the necessary pills, and her intention was also to combine them with a plastic bag. She was very frightened of the potential risk that she would fail, and she was nervous as to whether she would be able to go through with it on her own. [The applicant] then passed on information from the lawful guide on the website, but he did not pass on any information not already available from the website. He neither advocated nor encouraged her to commit suicide. In these circumstances, we find that the information given by [the applicant] to C was not of such a nature that the information can independently be considered to constitute a punishable act of assistance in her ending her life. Accordingly, we find that [the applicant] must be acquitted on this count of violation of section 240 of the Penal Code, which must also be considered to accord best with Article 10 of the European Convention on Human Rights on the right to receive and give information, see in this respect the judgment delivered on 29 October 1992 by the European Court of Human Rights in cases 14234/88 and 14235/88, Open Door and Dublin Well Woman v. Ireland .” 17. The Supreme Court, by a majority of three judges, sentenced the applicant to 60 days’ imprisonment, suspended. It was taken into account as an aggravating circumstance that to a certain extent the acts were committed in a systematic manner and that the applicant had been charged on three counts, the last act being committed after he had been provisionally charged by the police for violation of section 240 of the Penal Code. It was considered a mitigating circumstance that the applicant was almost 78 years old. The minority of two judges found that the applicant should have a suspended sentence of imprisonment for a term of 30 days, since count 1) was merely an attempt and under count 3) he had not assisted to a significant extent. Moreover, the minority of the judges found that the acts had not been committed in a systematic manner. | The applicant was a doctor and the founder of Physicians in Favour of Euthanasia (Læger for Aktiv Dødshjælp), an organisation campaigning for assisted suicide. The case concerned his conviction on two counts of assisted suicide, and one count of attempted assisted suicide. The applicant asserted that he had just been disseminating information about suicide. He complained that the final domestic-court decision had breached his right to free expression. |
980 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1947 and lives in Chişinău. He is an engineer. In 1997 he was the head of a Moldovan State-owned power distribution company called Moldtranselectro. 6. The background to this case lies in a series of complex contractual arrangements made in 1997 concerning importation of electricity from Ukraine to Moldova and involving, in addition to Moldtranselectro, a Ukrainian State-owned power distribution company, a Ukrainian private company and a Moldovan private company called Oferta Plus (see Oferta Plus SRL v. Moldova, no. 14385/04, § 7, 19 December 2006). The agreement to which Moldtranselectro was a party provided, inter alia, that Oferta Plus would pay the Ukrainian private company for the electricity supplied to Moldtranselectro in United States dollars (USD) and would later be paid back by Moldtranselectro in Moldovan lei (MDL) at the official exchange rate on the day of payment. 7. On unspecified dates between 1997 and 1998 Oferta Plus paid more than USD 33,000,000 for the electricity supplied to Moldtranselectro from Ukraine. 8. On an unspecified date Moldtranselectro paid Oferta Plus MDL 189,869,277. 9. On 3 March 1998 the Government of Moldova adopted Decision no. 243 by which the Ministry of Finance was authorised to issue nominative Treasury bonds (“Treasury bonds ”) in favour of private companies for the payment of debts arising from the importation of electricity supplied to state institutions. 10. On 25 March 1998 Moldtranselectro wrote a letter to the Ministry of Finance asking it to issue a Treasury bond with a value of MDL 20,000,000 in favour of Oferta Plus. The letter was signed by the applicant in his capacity as head of Moldtranselectro. 11. On 27 March 1998 the Ministry of Finance issued a Treasury bond valued at MDL 20,000,000 (USD 4, 240, 702 as of 27 March 1998) in favour of Oferta Plus, payable by 10 July 1998. The Treasury bond provided that Oferta Plus had to present it to the Ministry of Finance at least ten banking days before the date of payment. It also provided that Moldtranselectro had to present, by that date, to the Ministry of Finance, documents proving the supply of electricity to state institutions. 12. Oferta Plus presented the Treasury bond to the Ministry of Finance ten banking days before the date of payment. However, the latter refused to pay, on the ground that Moldtranselectro had failed to submit evidence concerning the payment by Oferta Plus for the imported electricity. 13. In October 1998 Oferta Plus initiated civil proceedings against both the Ministry of Finance and Moldtranselectro. The Ministry of Finance defended the action on the grounds set out in paragraph 12 above while Moldtranselectro declined all responsibility. 14. On 27 October 1999 the Chisinau Economic Court found in favour of Oferta Plus and confirmed its right to be paid MDL 20,000,000 by the Ministry of Finance, in accordance with the Treasury bond. It based its judgment on the finding that Oferta Plus had paid for energy supplied to Moldtranselectro from Ukraine in accordance with the agreement between them and that that energy had been consumed by state institutions. The court also decided to absolve Moldtranselectro of any responsibility. 15. Since an appeal by the Ministry of Finance was dismissed on 25 November 1999 for failure to pay court fees, a warrant for the enforcement of the judgment of 27 October 1999 was issued to Oferta Plus in November 1999. 16. On 14 February 2000 Oferta Plus officially requested a bailiff to start the enforcement procedure under the warrant. 17. On 27 April 2000 the Ministry of Finance requested an extension of the time-limit for lodging an appeal against the judgment of 27 October 1999 and its request was granted. The appeal was examined on its merits and dismissed by a judgment of the Appeals Chamber of the Economic Court of the Republic of Moldova on 4 October 2000. The Ministry of Finance lodged an appeal on points of law, reiterating that Moldtranselectro had not complied with its obligation in the Treasury bond. 18. On 7 February 2001 the Supreme Court of Justice dismissed the appeal and upheld the judgments of 27 October 1999 and 4 October 2000. It found it undisputed that Oferta Plus had paid for electricity supplied from Ukraine to Moldtranselectro and consumed, inter alia, by state institutions. 19. In March 2001, following a request by the Ministry of Finance, the Prosecutor General's Office introduced a request for annulment of the final judgment of the Supreme Court of Justice. On 7 May 2001 the Plenary Supreme Court of Justice dismissed the request and upheld the judgments favourable to Oferta Plus. It found, inter alia, that both during the proceedings before the lower courts and before the Plenary Supreme Court, it had been established that over MDL 20,000,000 worth of electricity had been supplied to state institutions. 20. On 26 April 2004 the Government Agent informed the Ministry of Finance about Oferta Plus's application to the Court concerning the non-enforcement of the final judgments in its favour and requested it to “take all the necessary steps in order to avoid a finding of a violation against the State by the Court, with the consequent impairment of the country's image”. 21. On 7 June 2004 the Ministry of Finance wrote to the Prosecutor General's Office, informing it, inter alia, that it considered the judgment in favour of Oferta Plus to be unlawful, but that it had complied with it partially so that Oferta Plus would not complain to the Court. The Government Agent had informed it that Oferta Plus had already complained to the Court. The Ministry asked the Prosecutor General's Office for advice. 22. On 8 June 2004 the Prosecutor General's Office wrote to the Ministry as follows: “...during the proceedings [between Oferta Plus, Moldtranselectro and the Ministry of Finance] Oferta Plus and Moldtranselectro presented invoices for MDL 15,608,692, of which by 24 April 1998 only MDL 6,226,504 had been paid. No other evidence as to the extent to which Oferta Plus had fulfilled its obligations under the agreement [of 1997] has been presented. Despite this the courts ruled in its favour. In that respect the Prosecutor General's Office has ordered an audit to verify the supply of electricity and the payments between Oferta Plus, Moldtranselectro and state institutions. A final decision will be adopted by the Prosecutor General's Office after the results of the audit become available to it and the Ministry of Finance will be informed accordingly.” An attempt to carry out this audit was made in August 2004 by a representative of the Ministry of Finance at the request of the Prosecutor General's Office. However, it was unsuccessful because, in accordance with book-keeping legislation, Oferta Plus had destroyed the accounting documents after three years. 23. The Ministry of Finance did not wait for a final reply from the Prosecutor General's Office and on 15 June 2004 lodged with the Plenary Supreme Court of Justice a request for revision of the judgments in favour of Oferta Plus. The request did not specify any reasons for revision. 24. On 12 July 2004 the Plenary Supreme Court of Justice upheld the revision request, following a hearing at which the Ministry of Finance was represented by the Deputy Prosecutor General. It quashed the judgments in favour of Oferta Plus and ordered the reopening of the proceedings. The re-opened proceedings ended with a judgment of the Supreme Court of Justice of 10 February 2005 in favour of the Ministry of Finance. 25. In the meantime, on 19 October 2004, the Prosecutor General's Office, having examined the letter from the Ministry of Finance of 7 June 2004 (see paragraph 21 above), initiated criminal proceedings against Oferta Plus and against the applicant on charges of large-scale embezzlement of State property. The Prosecutor General's Office referred to the results of the audit which it had attempted to carry out in August 2004 (see paragraph 22 above) and stated, inter alia, that according to the results of that audit, Oferta Plus had not paid for electricity supplied to state institutions. 26. On 15 April 2005 the Chief Executive Officer of Oferta Plus (“C.T.”) was questioned by the Prosecutor General's Office. 27. On 20 April 2005 the offices of Oferta Plus were searched and some documents seized. 28. On 25 October 2005 the criminal proceedings were discontinued. The prosecutor in charge of the criminal case stated in his decision of discontinuation, inter alia, the following: “According to the evidence obtained during the audit, between 1997 and 2000 Moldtranselectro's debt to Oferta Plus reached MDL 202,644,866... The materials gathered [during the investigation] and the audit prove the existence of the debt of Moldtranselectro to Oferta Plus for the electricity supplied. ... Taking into consideration the evidence gathered, [the prosecution concludes] that the acts of Oferta Plus's management do not disclose any signs of the offence [of large-scale embezzlement] or of other offences.” 29. On 15 February 2006 the Court communicated the case of Oferta Plus to the Moldovan Government. 30. On 26 April 2006 the Deputy Prosecutor General quashed the decision of 25 October 2005. He submitted, inter alia, that on 1 January 2001 Moldtranselectro's debt to the applicant company for the electricity supplied had been MDL 38,454,671. He argued that while Oferta Plus had paid the Ukrainian partner more than MDL 20,000,000 for the electricity supplied to Moldtranselectro, it appeared that the energy for which it had paid had not been supplied exclusively to state institutions. 31. On 9 August 2006 the applicant was declared a suspect in the criminal proceedings. In particular he was accused of having written the letter of 25 March 1998 to the Ministry of Finance asking it to issue a Treasury bond in favour of Oferta Plus (see paragraph 10 above) while knowing that the energy supplied to Moldtranselectro, for which the Treasury bond was to be issued, had not been consumed by state institutions as stipulated in the Government's Decision of 3 March 1998 (see paragraph 9 above). On the same date C.T. was indicted on similar charges. 32. On the same date the applicant and C.T. were arrested and remanded in custody for ten days on the grounds, inter alia, that they could influence witnesses and hinder the investigation. According to the applicant, before being arrested the investigator made it clear to him that his arrest or release depended on whether he would agree to make the declarations expected of him. 33. Both the applicant and C.T. appealed against the detention order and argued, inter alia, that there had been no reasonable suspicion that they had committed an offence and that the criminal proceedings against them had been a form of pressure to persuade Oferta Plus to abandon its application before the Court. The applicant argued that he had been arrested because he had refused to make the declarations he had been asked to make by the investigating officer and in order to induce him to make such declarations. He also argued that the criminal proceedings had been pending since October 2004 and that since that date he had never failed to appear before the investigating authorities when summoned. On 15 August 2006 the applicant's appeal was dismissed without any reasons being given for rejecting the arguments relied on by the applicant. 34. The applicant's detention was subsequently extended and all his habeas corpus requests rejected. It continued until 19 November 200 6 when he was released on bail. 35. Throughout his detention the applicant was detained in the detention centre of the Centre for Fighting Corruption and Economic Crimes (“CFECC”). The room used for meetings between lawyers and detainees had a glass partition to keep them separated. The applicant complained before the domestic courts of the impossibility of holding confidential meetings with his lawyer, but his complaints were dismissed. He did not want the domestic authorities to know about his application to the Court and therefore his application and the power of attorney had to be signed by his wife. 36. On 27 June 2007 the applicant was acquitted by the Centru District Court of all the charges brought against him. | In 1997 the applicant was the head of Moldtranselectro, a Moldovan State-owned power distribution company. The background to the case was a series of complex contracts concerning importation of electricity from Ukraine to Moldova involving, in particular, Moldtranselectro and a company incorporated in Moldova, Oferta Plus. The applicant, who was declared a suspect in criminal proceedings on charges of large-scale embezzlement of State property, and arrested and remanded in custody in 2006, complained in particular of the unlawfulness of his detention. |
946 | Freedom of expression | I. Circumstances of the case 6. Mr Leo De Haes and Mr Hugo Gijsels live in Antwerp and work as an editor and journalist respectively for the weekly magazine Humo. A. The action for damages against the applicants 7. On 26 June, 17 July, 18 September and 6 and 27 November 1986 the applicants published five articles (see paragraphs 19 et seq. below) in which they criticised judges of the Antwerp Court of Appeal at length and in virulent terms for having, in a divorce suit, awarded custody of the children to the father, Mr X, a Belgian notary ( notaire ); in 1984 the notary ’ s wife and parents-in-law had lodged a criminal complaint accusing him of incest and of abusing the children, but in the outcome it had been ruled that there was no case to answer. 8. Mr X had instituted proceedings for criminal libel against those who had lodged the complaint. The Malines Criminal Court and subsequently the Antwerp Court of Appeal acquitted the defendants on 4 October 1985 and 5 June 1986 respectively. The Court of Appeal held, inter alia: "At the present time the rulings that there was no case to answer show that the allegations have been judicially held to be without foundation. It has not been proved, however, that the defendants acted in bad faith, that is to say with malicious intent, and they had no good reason to doubt the truth of the allegations. Indeed, it was not only the defendants who were convinced that the allegations were true but also eminent academics, including Professor [MA] ... and Dr [MB], a child psychiatrist, both of whom were appointed as experts by the investigating judge, Mr [YE]... At the Criminal Court hearing on 6 September 1985 ... the expert [MB] confirmed on oath the content of his report. That expert, who can hardly be said to lack experience in the field of child psychology and who studied all the evidence in the criminal case file, concluded on 28 August 1984 that the children ’ s statements were credible and put forward several arguments in support of that view." On 20 January 1987 the Court of Cassation dismissed an appeal on points of law brought by Mr X. 1. In the Brussels tribunal de première instance 9. On 17 February 1987 three judges and an advocate-general of the Antwerp Court of Appeal, Mrs [YA], Mr [YB], Mr [YC] and Mr [YD], instituted proceedings against Mr De Haes and Mr Gijsels and against Humo ’ s editor, publisher, statutory representative, printer and distributor in the Brussels tribunal de première instance (court of first instance). On the basis of Articles 1382 and 1383 of the Civil Code (see paragraph 26 below), they sought compensation for the damage caused by the statements made in the articles in question, statements that were described as very defamatory ( zeer lasterlijk en eerrovend ). They asked the court to order the defendants to pay nominal damages of one franc each in respect of non-pecuniary damage; to order them to publish its judgment in Humo; and to give the plaintiffs leave to have the judgment published in six daily newspapers at the defendants ’ expense. 10. In order to safeguard the principle of equality of arms and due process, the defendants asked the court, in their additional submissions of 20 May 1988, to request Crown Counsel to produce the documents mentioned in the disputed articles or at least to study the opinion of Professors [MA], [MC] and [MD] on the medical condition of Mr X ’ s children, which had been filed with the judicial authorities. They gave the following grounds for their application: "The issue arises whether the defendants, given the factual evidence available to them, were entitled, within the limits of press freedom, to publish the impugned criticisms of the functioning of a judicial body. ... In the disputed press articles the defendants relied, in particular, on various medical reports, statements by the parties and reports by a bailiff. ... Nor can it be denied that Mr X ’ s libel action against his wife was dismissed. Now that it must be determined whether the defendants were entitled to publish the impugned press articles on the basis of the information available to them, it is essential for the proper conduct of the case that Crown Counsel, who is acting in the case under Article 764-4 of the Judicial Code, should produce to the Court the documents cited as sources in the series of articles. These documents are to be found in various court files. Any argument as to the lawfulness of the press criticism presupposes at the least that the Court should be able to study the opinion of Professors [MA], [MC] and [MD] on the treatment of X ’ s children, which has been sent to the judicial authorities. The opinion of those eminent professors of medicine was the decisive factor which prompted Humo to publish the impugned series of articles in such a forceful manner. The views maintained by the defendants and the language and descriptions they used cannot be assessed in the abstract but must be assessed in the light of these data, which go to the substance of the case. Thus the European Court held in the Lingens case (judgment of the ECHR of 8 July 1986, Series A no. 103) that the issue of the limits of the exercise of freedom of expression had to be examined against the whole of the background: ‘ It must look at them in the light of the case as a whole, including the articles held against the applicant and the context in which they were written ’ (paragraph 40 of the judgment). ... For these reasons ... may it please the Court ... to hold that it is necessary, for the proper conduct of the proceedings, in particular in the light of the principle of equality of arms and due process, to request Crown Counsel to produce the documents cited in the disputed articles that appeared in the magazine Humo, or at least to study the opinion of Professors [MA], [MC] and [MD] on the medical condition of X ’ s children, which has been filed with the judicial authorities." 11. On 29 September 1988 the court ordered Mr De Haes and Mr Gijsels to pay each plaintiff one franc in respect of non-pecuniary damage and to publish the whole of its judgment in Humo; it also gave the plaintiffs leave to have the judgment published at the applicants ’ expense in six daily newspapers. Lastly, it declared the action inadmissible in so far as it was directed against the other defendants. The court held, inter alia: "The plaintiffs are obviously not challenging freedom of expression and of the press as guaranteed in Articles 14 and 18 of the Constitution and Article 10 para. 1 (art. 10 ‑ 1) of the [European Convention on Human Rights]. Equally, the defendants cannot dispute that this freedom is not unlimited and that there are certain bounds which cannot be overstepped. As has already been set out ..., Article 10 para. 2 of the Convention (art. 10-2) is no obstacle to bringing a civil action under Article 1382 of the Civil Code where the press has acted wrongfully. Article 10 para. 2 of the Convention (art. 10-2) expressly provides that freedom of the press ‘ may be subject to such ... restrictions ... as are prescribed by law and are necessary ... for the protection of the reputation or rights of others ... or for maintaining the authority and impartiality of the judiciary ’. The need to protect the plaintiffs ’ private life (Article 8 para. 1 of the Convention) (art. 8-1), and more specifically their honour and reputation, means, in the case of a press article, that the press must (1) strive to respect the truth; (2) not be gratuitously offensive; and (3) respect the privacy of the individual. These criteria are taken up in the ‘ Declaration of the Rights and Obligations of Journalists ’ drawn up by the International Federation of Journalists. In the articles in question the defendants make frequent references to the fact that the plaintiffs had allegedly erred in their judgment and had shown bias. The defendants accepted as true, without more, the statement made by Mr X ’ s former wife and her expert adviser (Professor [MA]), although it was clearly shown in the reasons set out in the four judgments given in the case why that statement was not reliable. More seriously still, in the articles in question the defendants expressed the opinion that the plaintiffs had to be regarded as biased, an opinion derived from the fact that they were said to belong to the influential circle of acquaintances of the notary and his father, that one of them was the son of a gendarmerie general who in 1948 had been convicted of collaboration, that they allegedly had an extreme-right-wing background and that they were friendly with each other. The plaintiffs ’ conduct was vigorously attacked by the defendants in extremely virulent terms, and the defendants clearly intended to present the plaintiffs in an unfavourable light and expose them to public opprobrium. The defendants sought to give their readers the impression that the plaintiffs were siding with the children ’ s father and that their judgments were inspired by certain ideological views. To this end, the defendants needlessly reminded their readers of the wartime activities of the father of one of the plaintiffs. The plaintiffs rightly observed that they cannot simply be put on a par with members of the legislature or of the executive. Politicians were elected and the public had to trust them. Politicians could, moreover, use the media to defend themselves against any attacks. Magistrats [a term which in Belgian law covers both judges and members of Crown Counsel offices], on the other hand, were expected to discharge their duties wholly independently and dispassionately. Their duty of discretion meant that they could not defend themselves in the same way as politicians. That being so, the defendants committed a fault in attacking the plaintiffs ’ honour and reputation by means of irresponsible accusations and offensive insinuations. The orders sought by the plaintiffs will provide appropriate redress for the non-pecuniary damage they have sustained ..." 2. In the Brussels Court of Appeal 12. The applicants appealed against that judgment. In their submissions of 10 November 1989 they pointed out, among other things, that the sole purpose of the articles in question had been to criticise the functioning of the judicial system following the proceedings conducted by the respondent judges and Advocate-General concerning possible abuse and incestuous acts suffered by the children. At no time had they attacked the respondents ’ private life without reference to their part in the impugned decision. Mr De Haes and Mr Gijsels repeated their offer to prove the facts described in the articles and asked the court to request Antwerp Principal Crown Counsel to produce the documents they had mentioned, at least those emanating from Professors [MA], [MC] and [MD] and those from the file on X ’ s divorce, in particular certain reports and a letter to Principal Crown Counsel from Professor [MA]. 13. The respondents sought to have the judgment of the court below upheld. In their submission, the applicants ’ conduct had been all the more reprehensible and offensive as in an article that had appeared in Humo on 14 October 1988 (see paragraph 24 below) the applicants had not only maintained their accusations that the three judges and the Advocate-General were biased but also criticised by name, in humiliating terms, the judges who had given the judgment of 29 September 1988 (see paragraph 11 above). 14. On 5 February 1990 the Brussels Court of Appeal affirmed that judgment, holding inter alia: "..., as submitted by the prosecution, no action must or can be taken on the appellants ’ application to the Court to ‘ request Antwerp Principal Crown Counsel to produce to the Court the documents cited in the disputed articles that appeared in the weekly magazine Humo ’, and in particular - under Article 877 of the Judicial Code - ‘ all the documents from the X file ’. As already indicated, it is not the Court ’ s task - nor is it within its jurisdiction - to consider the case already determined by the Antwerp Court of Appeal, on appeal from the Youth Court. It follows that the possible course - which is purely discretionary (Court of Cassation, 2 June 1977, Pas[ icrisie ] 1977, I, 1012) - provided in Article 877 of the Judicial Code of ordering that the documents in question should be added to the file of the present case would serve no useful purpose whatever. The appellants are accordingly bound to admit that they commented on a court case and besmirched the honour of magistrats without being in possession of all the necessary information, and this makes the complete irresponsibility of their malicious attacks even more flagrant. They further aggravate their position by offering ‘ to prove the facts referred to in the relevant articles by any legal means, including an examination of witnesses, before the case is decided ’ - an offer which not only must be rejected as being out of time but also clearly indicates - and this is the main point to be considered here - with what lack of care and information the articles in question were written and their accusations made, before the appellants even had sufficient evidence that they were true. In the present case the offer in question could not in any way support the appellants ’ case; on the contrary, it clearly shows that the original plaintiffs ’ arguments were well ‑ founded and it also lacks the requisite precision. It is not sufficient for the appellants to offer - as they nevertheless do - to prove that everything they have written in the past concerning ‘ the case ’ is the truth; it has to be specified minutely, point by point, what precise and clearly described fact - ‘ precise and relevant ’ in the words of Article 915 of the Judicial Code - is being offered as evidence. This is in order to make it possible for the opposing side to adduce rebutting evidence and to enable the Court to assess the relevance and importance of the facts adduced; the appellants did not even take the trouble to comply with this requirement. Furthermore, the Court already has before it all the information necessary to enable it to decide, in full knowledge of the facts, whether there has really been defamation. ... As regards the merits of the case, the court below, for ... relevant reasons that have not been refuted and with which this Court agrees, held that the original claim against the appellants was well-founded because the appellants had undeniably committed a gross fault in casting serious slurs on the honour and reputation of the original plaintiffs by means of unjustified accusations and offensive insinuations. Freedom of expression and of the press as guaranteed in Articles 14 and 18 of the Constitution and Article 10 para. 1 (art. 10-1) of the [European Convention on Human Rights] is not unlimited; certain bounds must not be overstepped and, as has already been pointed out, it is even possible, under Articles 1382 and 1383 of the Civil Code, to bring an action for damages where the press has acted wrongfully. Moreover, in relation to the tort in question, Articles 443 et seq. of the Criminal Code also refer to acts which may injure a person ’ s honour or expose a person to public contempt. Defamation of public authorities is punishable in the same way as defamation of individuals. Such defamation was precisely what the original plaintiffs in this case complained of and they undeniably constitute unlawful ‘ acts ’, as referred to in Article 1382 of the Civil Code, ‘ that cause damage to another ’. There is no basis for the appellants ’ contention that ‘ Article 443 of the Criminal Code is the sole provision in Belgian law which authorises the courts to restrict freedom to hold opinions with a view to protecting the honour and reputation of others; neither Article 764, 4, of the Judicial Code nor Article 1382 of the Civil Code does so ’. According to that argument, the press, and it alone, is not subject to the ordinary, general rule in Articles 1382 and 1383 of the Civil Code, which impose a duty on ‘ everyone ’ to act lawfully and make everyone responsible for any damage caused through his own ‘ act ’, ‘ failure to act ’ or ‘ negligence ’. Under Article 10 para. 2 of the Convention (art. 10-2), freedom of the press may be subject to such restrictions as are prescribed by law and are necessary, as in the instant case, for the protection of the reputation or rights of others or for maintaining the authority and impartiality of the judiciary. Pursuant to Article 8 para. 1 (art. 8-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, the guarantee of respect for private life requires that press articles should be truthful, must not be gratuitously offensive and must respect the privacy of the individual, criteria which were taken up in the ‘ Declaration of Rights and Obligations of Journalists ’ drawn up by the International Federation of Journalists and approved by the journalists of daily newspapers in different countries of the European Community in Munich on 24 and 25 November 1971, where Belgium was represented by the Professional Union of the Belgian Press. The appellants cannot in any way rely on Article 19 of the UN Covenant or of the Universal Declaration, since these similarly make no reference to unlimited freedom of expression. Furthermore, the appellants did not explain, and it cannot be discerned, why the generally applicable concept of fault, expressly provided in Articles 1382 et seq. of the Civil Code, should be incompatible with Articles 8 para. 1 and 10 para. 2 of the Convention (art. 8-1, art. 10-2) (whose precedence is not being called into question here) in relation to restrictions on freedom prescribed by law and the protection of private life, which is at issue here; nor why only journalists should not be subject to those provisions. In this connection, the Court wholly agrees with the relevant reasons set out in the judgment of the court below, which it adopts in their entirety. ... Admittedly, the European Court of Human Rights held in the Bruno Kreisky case that the Austrian journalist Lingens, who was concerned in that case, had attacked Mr Kreisky exclusively as a politician and consequently had not violated his right to respect for private life. In the instant case, on the contrary, that right was well and truly - indeed grossly - challenged by the appellants. The words used and the insinuations and imputations made in the articles and passages in question are extremely virulent and dishonouring, since the original plaintiffs, referred to by name, were accused of having been biased as senior magistrats, and it was gratuitously insinuated that they had links with the VMO [ Vlaamse Militanten Orde ] and that they came from an extreme-right-wing background and belonged to the circle of friends of the children ’ s father - who was also, in the appellants ’ opinion, extremely right-wing - so that the judicial decisions made by the original plaintiffs in respect of the children ’ s custody were only to be expected - all this without any serious and objective evidence whatever being adduced or existing to show that the accusations against these magistrats had any factual basis. ... The appellants manifestly intended to give their readers the impression that the judges and Advocate-General concerned had sided with one of the parties to the case and, furthermore, that their judgments were inspired by certain ideological views. Additionally, they needlessly and in a quite uncalled-for manner reminded their readers of the wartime activities of the second respondent ’ s late father, which the second respondent had absolutely nothing to do with and which - despite the appellants ’ opinion to the contrary - belong exclusively to the protected sphere of private life. Even if the appellants believed that certain ideological views could be ascribed to the respondents (views which they have failed to prove that the respondents held), they cannot in any event be permitted purely and simply to infer from those views - even if they had been proved - that the judges and the Advocate-General were biased and to criticise that bias in public. In none of these suspicions or pieces of gossip directed against the judges and Advocate-General who brought the original action is there a shred of truth, and the applicants even lied in their article of 6 November 1986 (p. 19) when they stated that the case decided by those judges had been withdrawn from them by the Court of Cassation, whereas they have now had to admit in their additional pleadings (p. 6) that ‘ Principal Crown Counsel at the Court of Cassation refused to order that the case should be transferred to another court (under Article 651 of the Judicial Code) ’. On 6 November 1986 they announced: ‘ Last Thursday the Wim and Jan case took a dramatic legal turn. On an application by Principal Crown Counsel ..., the Court of Cassation withdrew the X case from the Antwerp court and transferred it to the Ghent tribunal [de première instance] in the hope that the Ghent magistrats would adopt a less biased approach ... ’ Admittedly, they went back on this point on 27 November, writing: ‘ ... Our prediction of a fortnight ago that the agonisingly slow progress being made in the Wim and Jan case was likely to leave the case stranded in the Antwerp courts has come true. In the teeth of all the evidence, the Court of Cassation has held that the Antwerp judiciary cannot be accused of any bias in this incest case and that the whole case can therefore continue to be dealt with in Antwerp ... ’ False reports of this kind, however, caused the original plaintiffs irreparable damage, since to be accused of bias is the worst possible insult that can be levelled at a magistrat. The exceptional virulence of the appellants ’ irresponsible criticisms can probably be explained - but not excused - by certain political quarrels (which, indeed, do not serve the interests of justice), as was acknowledged by the appellants themselves in the 12 February 1987 issue of Humo : ‘ ... If any further proof were needed of behind ‑ the ‑ scenes intrigues in the case of Mr X and of the fact that political allegiances are definitely playing a role, this (premature?) leak to the press is one of the most persuasive pieces of evidence ... ’ Because of the unacceptable way in which they were attacked in the impugned articles, the original plaintiffs were shown in a particularly unpleasant light and their honour and reputation were seriously undermined by insulting statements which without any doubt went far beyond what the appellants described as ‘ their ability to take flak ’. The appellants in fact nevertheless consider their aggressive style and offensive disparagements justifiable in a little paper like Humo, which they describe as ‘ clearly critical and anti-bourgeois ’. However, although, when ruling on the defamatory nature of contributions published in a magazine of this kind with a clear critical stance towards bourgeois society, one must not apply the same criteria as when ruling on libellous articles in an ‘ ordinary ’ newspaper, it nevertheless remains true that even in an avowedly critical magazine certain standards must be respected when criticisms are made, certain bounds must not be overstepped and it is not permissible to publish false information and unproved accusations with the clear aim of humiliating and wounding particular persons, as to do so undeniably amounts to an abuse of press freedom. While people are certainly entitled to be ‘ anti-bourgeois ’ (?), this does not authorise them to pour out pure gossip to the public - however limited their readership - by writing, for example: ‘ The Advocate-General [YD] has since very properly been removed from this case for having exceeded his authority ’ ( Humo, 17 July 1986, pp. 6 and 7). Nevertheless, although the appellants have now, in their additional submissions, backed down and, saying that their earlier statement that the Advocate-General had been ‘ removed ’ had been a ‘ personal interpretation ’ of the ‘ fact that at a given point he had ceased to sit ’, such an ‘ interpretation ’ should impel these ‘ journalists ’ - however particularly ‘ personal ’ their style may be - to practise their profession in future in a less unscrupulous manner. In the 14 October 1988 issue of Humo (p. 15) - that is to say during the present proceedings and although they had announced in the same short piece that they would be appealing - the appellants made their position considerably worse still by again accusing the original plaintiffs of bias and criticising, in similarly degrading terms, the judges who delivered the judgment at first instance, who were mentioned by name. This article stated, among other things: ‘ ... The Vice-President, [YF], and the other judges, [YG] and [YH], dealt with the case carelessly (sic) ... We wonder whether their Lordships actually read Humo ’ s submissions ... But at no time has Humo ever brought up anything to do with the judges ’ private lives (sic) ... Clearly, the Brussels judges [YF], [YG] and [YH] did not manage to give judgment with the necessary detachment and independence on their fellow judges of the Antwerp Court of Appeal. They are thus adhering to the line of biased judgments ... ’ This could be interpreted as a particularly misplaced and culpable attempt to influence [the members of this Court], especially as the appellants predict, through counsel in their pleading (p. 27), that no newspaper will be prepared to publish the present judgment, a step that has in any case not been sought. As regards the question of the case having been dealt with ‘ carelessly ’, the appellants have still not grasped that usually - and rightly - the courts must attach greater weight - as they did in the instant case - to the findings of expert witnesses that the courts themselves have appointed and who have no connection with the litigants and whose objectivity therefore cannot be called in question by either of the parties rather than - as the appellants do - to the parties ’ own experts, whose investigations, assessments and findings, however, form the main or even sole evidence on which the appellants believe they are entitled to rely to make their attacks. As is unfortunately only too often to be found, notably in court cases, even excellent university professors and specialists - in the instant case no fewer than three on each side - disagree among themselves and, particularly in the fields of psychology and psychiatry, hold diametrically opposed views - of which each claims to be 100% certain; this should prompt everyone - particularly journalists - to refrain from making accusations of bias - that is to say the most serious of all - against judges who have to make the final decision on issues as thorny as the custody of children, where strong passions are always aroused, and who must necessarily prefer one of the different versions put forward by the parties to the proceedings. In the instant case the appellants dared to go one step further by maintaining, without a shred of evidence, that they were entitled to infer the alleged bias from the very personalities of the judges and the Advocate-General and thus interfere with private life, which is without any doubt unlawful. Furthermore, the purpose of the present proceedings is not to decide what ultimately was the objective truth in the case that the original plaintiffs finally determined at the time but merely whether the comments in issue are to be considered defamatory, which is not in the slightest doubt. Although the appellants refused to acknowledge the fact, magistrats cannot be unreservedly put on the same footing as politicians, who can always adequately and promptly defend themselves, orally or in writing, against reprehensible personal attacks and are therefore less vulnerable than a magistrat, who is neither able nor entitled to do likewise. The status of a magistrat is radically different from that of all other holders of public office and of politicians and is in no way based on privileges or traditions but on the fact that it is necessary for the administration of justice, which entails particular tasks and responsibilities (see the speech delivered by F. Dumon, formerly Principal Crown Counsel at the Court of Cassation, at the opening session of the new judicial term on 1 September 1981, ‘ Le pouvoir judiciaire, inconnu et méconnu ’, p. 64). Given the discretion incumbent upon them by virtue of their office, magistrats cannot defend themselves in the same way as, for example, politicians, if certain newspapers, apparently hungry for lucrative sensational stories, attack them and drag them through the mud. Purely political cases are precisely what most of the case-law and legal opinion cited by the appellants in this connection relates to, however, and it is therefore not relevant to the instant case. Unlike a politician, a judge cannot discuss in public a case pending before him with a view to justifying his conduct, so that [the original plaintiffs ’ ] failure to exercise their right of reply certainly cannot be held against them by the appellants (see Ganshof van der Meersch, formerly Principal Crown Counsel at the Court of Cassation, ‘ Considérations sur l ’ art de dire le droit ’, esp. p. 20); this duty of discretion has again recently been referred to by the Court of Cassation (Court of Cassation, 14 May 1987, [Journal des Tribunaux ] 1988, p. 58)." 3. In the Court of Cassation 15. Mr De Haes and Mr Gijsels applied to the Court of Cassation, which dismissed their appeal on points of law on 13 September 1991 ( Pasicrisie 1992, I, p. 41). 16. In their first ground of appeal, they alleged a violation of the right to an independent and impartial tribunal, relying, in particular, on Article 6 para. 1 of the Convention (art. 6-1). In their submission, certain passages of the Court of Appeal ’ s judgment raised legitimate doubts as to the impartiality of those who had written it. This was true, for instance, of the words "a little paper like Humo ", the word "sic" in the extract from the article of 14 October 1988 (see paragraph 24 below) concerning the judgment of 29 September 1988 (see paragraph 11 above), a number of punctuation marks, such as the question mark after the term "anti ‑ bourgeois", and the statement that the article of 14 October 1988 was "a particularly misplaced and culpable attempt to influence [the members of the Court of Appeal]". The applicants also complained that due process had been disregarded in that, as they alleged, the Court of Appeal had referred to the article of 14 October 1988 of its own motion without their having been able to defend themselves on that point. The Court of Cassation rejected this ground, considering that "it could not be inferred from the mere fact that in their decision the appellate judges had shown that they preferred the arguments of one of the parties and disapproved of those of the other parties that there had been an infringement of the statutory provision and general principles relied on in this limb of the ground of appeal". As to the article that had appeared in Humo on 14 October 1988, the appellate judges had not referred to it of their own motion, since the respondents to the appeal on points of law had mentioned it in their submissions to the Court of Appeal. 17. In their second ground of appeal Mr De Haes and Mr Gijsels complained of a violation of Articles 8 and 10 of the Convention (art. 8, art. 10). In finding against them on the basis of the general concept of fault in Articles 1382 and 1383 of the Civil Code, the Court of Appeal had, they said, made their freedom of expression subject to formalities, conditions, restrictions and penalties not prescribed by "law" within the meaning of Article 10 para. 2 of the Convention (art. 10-2) (first limb). Furthermore, by holding that press articles must strive to respect the truth, must not be gratuitously offensive and must respect the privacy of the individual, the Court of Appeal had created restrictions which went beyond what was strictly necessary in a democratic society; public discussion of the functioning of the judicial system was of greater importance than the interest of magistrats in protecting themselves from criticism (second limb). Lastly, the evidence in the file did not justify the Court of Appeal ’ s finding that the articles in dispute had disregarded the aforementioned restrictions (third limb). The Court of Cassation dismissed this ground of appeal, holding in particular: "As to the first limb: In reaching the conclusion that the appellants are liable for the consequences of their press articles, the Court of Appeal based its judgment not only on the finding - partly cited in this limb of the ground of appeal - that the appellants had committed an unlawful act and that they ‘ did not explain, and it cannot be discerned, why the generally applicable concept of fault, expressly provided in Articles 1382 et seq. of the Civil Code, should be incompatible with Articles 8 para. 1 and 10 para. 2 of the Convention (art. 8-1, art. 10-2) ’ but also on the undisputed finding, rightly raised by the respondents, that the appellants had been guilty of defamation as defined in Articles 443 et seq. of the Criminal Code. The Court of Appeal ’ s judgment sets out reasons (not challenged in this limb of the ground of appeal) for the finding that the appellants had committed a fault within the meaning of Article 1382 of the Civil Code. This limb cannot justify quashing the judgment of the court below and is accordingly inadmissible, as argued by the respondents. As to the second limb: Under Article 10 (art. 10) cited above, the exercise of the right to freedom of expression may be subject to the restrictions or penalties necessary in a democratic society for the protection of the reputation or rights of others or for maintaining the authority and impartiality of the judiciary. When asked to punish a given abuse of freedom of expression affecting members of the judiciary, the courts must endeavour to maintain a fair balance between the requirements of freedom of expression and the restrictions applicable under Article 10 para. 2 (art. 10-2) of the aforementioned Convention. In the instant case the Court of Appeal based its decision that the appellants had abused the freedom of expression secured in Article 10 para. 1 (art. 10-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms not only on the need to protect the respondents ’ private life but also on the unchallenged grounds that the accusations made had not been proved, the criticism had been directed against named judges, the matters relied on were irrelevant to the decisions that had been taken and the accusations had been inspired by a desire to harm the respondents personally and damage their reputation. In holding, as appears from the text of its judgment, that, ‘ pursuant to Article 8 para. 1 (art. 8-1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, the guarantee of respect for private life requires that press articles should be truthful, must not be gratuitously offensive and must respect the privacy of the individual ’, the Court of Appeal took the view that a balance had to be sought between the interests of a free press and private interests; it did not thereby decide that the general interest of a public discussion of the functioning of the judiciary was less important than private interests, nor did it add any restriction to the exceptions exhaustively set out in Article 10 para. 2 (art. 10-2). This limb of the ground of appeal cannot be allowed. As to the third limb: Regard being had to the foregoing considerations, the third limb lacks any basis in fact." 18. In their third ground of appeal the applicants complained of the Brussels Court of Appeal ’ s refusal to take into consideration all the evidence that had been before the Antwerp Court of Appeal and to allow them to prove by any means the truth of their assertions. In their submission, Articles 6 and 10 of the Convention (art. 6, art. 10) had thereby been contravened. The Court of Cassation held: "The Court of Appeal decided not to grant the appellants ’ application for leave to prove the truth of their accusations; in particular, it refused to order that the files of the cases which had given rise to the decisions criticised in the press should be admitted in evidence. It based its decision not only on the grounds cited in the ground of appeal but also on separate, undisputed findings: that the appellants had admitted besmirching the reputation of magistrats without being in possession of all the necessary information, which in itself constituted a fault; that the offer to bring evidence was out of time and ineffective; and that the Court of Appeal had before it all the information necessary to enable it to decide, in full knowledge of the facts, whether there had really been defamation. This ground of appeal cannot justify quashing the judgment of the court below and is accordingly inadmissible." B. The articles in issue 19. The judgments against Mr De Haes and Mr Gijsels related to five articles that appeared in Humo (see paragraph 7 above). The first of these, published on 26 June 1986, included the following: "... Today, Thursday 26 June, the courts are due to rule in the long-running case of a well-known Antwerp notary who has been sexually abusing his two young sons. The notary himself comes from a distinguished Flemish family with close links to the most select financial circles in the country. All the indications are that the reputation of the father and grandfather count for more than the physical and mental health of the children. Up to now, the court has rejected, without batting an eyelid, all medical and psychiatric reports unfavourable to the notary. How can this be? Louis De Lentdecker has already written about this case in De Standaard, albeit in veiled terms. However, he was promptly taken to task by the Antwerp Advocate-General on the ground that his report had ‘ seriously compromised ’ the children ’ s father. Yet De Lentdecker had mentioned absolutely no names. For our part, we will also refrain from mentioning the father ’ s name or those of the two under ‑ age children (for convenience, we will call the three-year-old boy ‘ Wim ’ and the six-year-old ‘ Jan ’ and give the family ’ s surname as ‘ X ’ ). For the rest, we have every intention of mentioning the other names involved as this is not the first time that the Antwerp courts have shown a lack of independence and given extremely odd judgments. This report is not for those of a sensitive disposition. We put the facts to a psychologist working in a centre for psychological, medical and social therapy, a magistrat, a paediatrician and two lawyers, none of whom has anything to do with the case. Each of them, independently of the others, advised us to report on the case in the interests of the children. ... After Jan was born, things started to go wrong within the family. The husband was having affairs and even had another home. Divorce proceedings are filed in October 1983. The mother is awarded interim custody of the children; the father is given fortnightly access. At the end of 1983 the children return home after spending the Christmas holidays with their father; their mother finds them in a state of total exhaustion. Her paediatrician, Dr [ME], diagnoses them as having been overtaxed. While playing, the elder boy tells a story from which it is apparent that his father has raped him. Dr [ME] is notified and advises the mother to consult a forensic medical examiner. The same thing happens on 8 January 1984. Following her paediatrician ’ s advice, the mother tries to consult a forensic medical examiner, but he advises her to see a general practitioner first. There is no answer when she rings Dr [ME], so she turns to the duty doctor, [MF]. He finds that the elder boy has an ‘ irritation of the anus ’ and refers the mother to a paediatrician in Malines, Dr [MG]. He in turn observes the following injuries to the elder boy: ‘ slight anal fissure, pronounced redness around the anus, rectal smear showing presence of sperm ’. That evening, at his request, Dr [ME], the paediatrician, re-examines the children and, given the seriousness of the situation, refers them to Dr [MH], of the Mental Health Centre. On the basis of these medical reports, amongst other things, Judge [YI] of the Antwerp tribunal de première instance, acting on an urgent application, decides on 29 January 1984 to suspend the father ’ s right of access. However, on 31 January the Third Division of the Antwerp Court of Appeal restores the notary ’ s right of access, although the children are not to spend the night at his home and access has to take place in the presence of the grandparents. The nightmare begins, not only for the children, but also for their mother. ... On 4 February 1984, for the first time in four weeks, the notary has an access visit. At 10 o ’ clock in the morning he picks up the children in Malines, returning them to their mother at around 6.30 p.m. In a report the mother, shocked and bewildered, says: ‘ State of the children: distraught. Wim (aged 3) lies down on the ground and sobs. Jan (aged 6) sits down apathetically on a chair. He has visible clinical injuries: a very painful mouth, which he cannot close, severe swelling of the lower lip and problems with his eyes; four of his upper teeth come out at once; he also has a swelling of the neck below the left ear, a reddish irritation of the cheeks and scratches on the left cheek. ’ Her lawyer urges her to report the matter to the police at all costs, but she thinks there is no longer any point. In her statement she writes, despairingly, ‘ I did not want to, seeing that the gendarmerie were so sympathetic to the family and that I had already discovered from experience that the gendarmes did not take me seriously where the children were concerned. ’ ... The mother ’ s despairing protests are to no avail. On 18 February, 26 February and 3 March 1984, the father rapes his children again. Enough is enough. On 6 March 1984, at the request of Malines Crown Counsel, Detective Sergeant Luc R. interviews little Jan. A tape recording of the interview is filed with the Malines Criminal Court. We have seen the transcript of this interview. In childish words, but coherently and without contradicting himself, Jan describes sexual acts performed by his father on him and on his brother, who is even younger. The content of this interview is far too sensitive for us to reproduce it here. ... The mother no longer has any alternative. Since her urgent request for a renowned expert to be appointed has twice been rejected, she herself calls in the child psychiatrist [MA], a professor at the Catholic University of Louvain. On 6 and 11 April he examines the children and finds that during the weekend of 8-9 April the father has again ill-treated and raped his children. According to Professor [MA] ’ s findings, the children ’ s story essentially corresponds to what is stated in the mother ’ s complaint. Moreover, the children reveal certain details to him which even the mother has not mentioned and which her children manifestly cannot have invented. Professor [MA] concludes: ‘ We are convinced that the children ’ s visits to their father are manifestly likely to have an adverse effect on their future development. It is already clear that the immediate effect of access is that the children are extremely upset and disorientated; after the two days spent with their father, they present as anxious and aggressive. If these visits continue, we fear that both children may develop problems, in the nature of mental illness in the case of the elder and, in the case of the younger, a tendency to regress, with arrested development. We therefore request that the children should undergo a thorough psychiatric examination; that all the parties, including the father, should be interviewed; and that, pending this examination, the father ’ s right of access be temporarily withdrawn. ’ On 28 May 1984 Professor [MA] sent a detailed report on the case to Principal Crown Counsel [YJ] and the Advocate-General [YD]. It is an impressive document recording the results of a number of psychiatric examinations of the children in the form of interviews (both with and without the mother present). The children were examined both immediately after an access visit and at less stressful times during the week. Professor [MA] concluded: ‘ The two children confirm, independently of each other, the various types of sexual abuse which have been inflicted on them. ’ Could the mother have coached the children in these stories? Professor [MA] says ‘ Jan ’ s version of events always coincides with his mother ’ s. I see this in itself as an indication that Jan ’ s story reflects real experiences. A child of six does not in fact yet have the intellectual capacity, in the context of a guided interview, to faithfully reproduce, exactly as it has been told to him, a story which he has been "fed". Furthermore, there were times when Jan replied to very specific questions with equally specific answers, which he had never given his mother (and which his mother had therefore never mentioned). Thus when asked whether "he bites the willy when it comes into his mouth", he answers, very specifically: "I can ’ t, because he (the father) puts his fingers between my teeth." I do not consider that a six-year-old child is capable of inventing so specific a response, nor do I believe that such specific responses could have been "prepared" in advance by the mother. ’ On 22 June Professor [MA] sent a supplementary report to Principal Crown Counsel [YJ] and the Advocate-General [YD]. In it the child psychiatrist confirms his earlier findings with the aid of even more convincing arguments and again calls, insistently, for a judicial investigation and a further expert psychiatric report. But to no avail. The unthinkable happens: three days later the Third Division of the Antwerp Court of Appeal grants Mr X custody of his children. The court holds, inter alia: ‘ An expert opinion is not required and, indeed, is not desirable in that the expert would inevitably find himself faced with the issue of fault, which must be left to the courts alone to decide. ’ Those responsible for this extremely odd judgment are [YA] (the presiding judge), [YC] and [YB] (the other judges) and [YD] (the Advocate-General). ... In July, pursuant to the custody award in his favour, the notary has the children staying with him; they are again raped. In a tape-recorded interview Jan tells Professor [MA] that his Daddy has done ‘ the same thing ’ again, that Daddy ‘ thumped ’ him and hit him on his tummy and that he wasn ’ t allowed to tell anyone about it. Jan doesn ’ t know how many times his father has raped him - ‘ several times, I can ’ t count them ’. Professor [MA] sends his umpteenth letter on the matter to Principal Crown Counsel [YJ], stating, without mincing his words: ‘ In an emergency the State is bound to intervene under section 36 (2) of the Child Protection Act ... It is impossible and unacceptable for two children to remain exposed to an extremely dangerous situation as a result of a court decision. ’ All Professor [MA] ’ s findings are subsequently confirmed in ‘ an expert report ’ by Dr [MB], a child psychiatrist and psychoanalyst appointed by the investigating judge [YE] of the Malines tribunal de première instance. The following few extracts from Dr [MB] ’ s report may suffice: ‘ (1) After a little embarrassment Jan nevertheless finds it fairly easy to talk about his experiences with Daddy. His clearest memory is of the events of July 1984. He describes how Daddy sometimes used to sit on him, how Daddy used to put his sexual organ into his anus, or sometimes his mouth, and wee ‑ wee. He says that Daddy threatened him, saying that he would saw Grandma and Grandpa in half, and really hurt Jan, if he said anything about it all. He says that Daddy didn ’ t act like that when Daddy and Mummy were still together, Daddy just used to hit him; (2) Jan describes these experiences fairly readily and there are no contradictions in what he says. However, he presents as shocked and embarrassed when recounting certain things. He blushes and sometimes protests vigorously that Daddy was hurting him. He does not give the impression of making things up or merely seeking attention. ’ Psychoanalysis of Jan ’ s emotional life reveals, moreover, that the little boy is constantly anxious and traumatised. The findings concerning the younger child are similar. According to Dr [MB], ‘ His [ Wim ’ s ] fantasies create a strong impression that there has been sexual abuse by the father and that his unconscious is trying to assimilate these uncomfortable impressions. ’ In October little Wim is again interviewed by two detective sergeants and his (female) schoolteacher. The interview takes place in Wim ’ s usual classroom, in the presence of the headmistress. The child repeatedly confirms what has happened to him. The interview was transcribed verbatim and the tape filed as an exhibit at the Malines tribunal de première instance. ... How can a father reach the point of committing such atrocities against his own children? In his report Professor [MA] says: ‘ The problems between husband and wife became more serious after Jan was born. It was then that X, for the first time, overtly displayed his sympathies with Hitler. Thus, for example: · The family had to live according to Hitler ’ s principles: women do not count - at most, they are instruments of procreation. Anyone who fails to become an" Übermensch" (superman) had better die. An" Übermensch" can legitimately lie and be dishonest. [X] is in fact awaiting the coming of a new Hitler. His whole way of life is dominated by that. · The children were to be brought up in Hitler ’ s doctrine. They were made to give the Nazi salute; they were taught not to play but only to fight and make war. The children were to venerate their father just as the German people venerated Hitler at the time; their mother is merely an intruder in the X family. · Lastly, it is worth noting that Mr X has also declared on several occasions that he possesses supernatural powers and can crush anyone who opposes him. In particular, he says "We are leeches, we squeeze someone like a lemon, then we drop them." He certainly feels very powerful. He has also spoken to the children on several occasions about his "supernatural powers", saying that he was going to change Jan into a brown sheep and leave him in a field and that he was going to change little Wim into an owl. He also used to talk to the children a lot about skeletons and skulls. As a result, little Wim once asked his mother out of the blue "not to put him under the ground in a box". ’ Professor [MA] ends his remarks on the father thus: ‘ His manifest sympathies with Hitler and his regime, and his fantasies concerning his own supernatural powers and omnipotence reveal, at the very least, in my opinion, a pathological personality. I accordingly consider that a much more thoroughgoing judicial investigation and psychiatric report are imperative in this case. ’ ... The X family ’ s almost daily contacts with the legal world are not enough to explain how he has remained almost immune. The large network of contacts which the family has woven over the years is proving useful in this respect, especially their contacts in extreme-right-wing and/or Flemish nationalist circles. For example, members of the X family are militants in the Stracke Noodfonds, the Marnixring, the Orde van de Prince, the Vlaamse Kulturele Produkties (an offshoot of Were Di), the Nationalistich Jong Studenten Verbond (NJSV) and the Vlaams Blok. It is a well-known fact that the X family gives financial support to the VMO. In 1971 they helped create the ‘ new ’ VMPO under Bert Eriksson, and at the time of the VMO trials they launched an appeal through the Stracke Noodfonds for members to make a financial contribution in support of ‘ dozens of young Flemish people facing ridiculous penalties and fines ’. Witnesses confirm that the cellar of the X family ’ s house is decorated with Nazi swastika flags, the ideal décor for nostalgic little ‘ brown ’ parties. Equally remarkable are the X family ’ s efforts in support of apartheid. One of the members of the family was even a founder of the pro-South-African club Protea. Why is this network of contacts so important in the notary ’ s incest case? Most of the judges of the Third Division of the Court of Appeal, who awarded custody to the notary, also belong to extreme-right-wing circles. Judge [YB] is the son of a bigwig in the gendarmerie who was convicted in 1948 of collaboration: he had, in close collaboration with the ‘ Feldgendarmerie ’, restructured the Belgian gendarmerie along Nazi lines. [YB] is no less controversial as a magistrat. During the judicial investigation into the VMO training camps in the Ardennes, he managed, in the teeth of all the evidence, to sustain the theory that the photographs of the training camp had nothing to do with the VMO but came from German neo-Nazis. Another judge in this incest case is [YA]; she is the President of the Antwerp Court of Appeal. During the VMO trial, over which she presided, the organisation was acquitted on the charge of constituting a private militia. This judgment was subsequently reversed by the Ghent Court of Appeal. And then there is Principal Crown Counsel [YJ], whom Professor [MA] has bombarded with reports denouncing the sexual abuse of the children. It just so happens that Principal Crown Counsel [YJ] has the same political sympathies as the X family. He was one of the founders of Protea but had to resign after a question was asked in Parliament. He is still a member of the Marnixring and of the Orde van de Prince in Malines, with both of which the X family maintains very special links. Since the very beginning of the investigation the gendarmerie too have played a dubious role. The abused children and their mother have consistently been treated like dirt, whereas the notary accused of incest and his father have been treated with the greatest consideration. Is it a coincidence that the X family maintains contacts with several of the (present or past) bigwigs of the gendarmerie: former Lieutenant-General [ZC] ( Protea and the Orde van de Prince), General [ZD] (the Marnixring ) and General [ZE] (the Marnixring and Orde van de Prince)? ... The children are not in good shape. They are receiving treatment and, according to well-informed sources, are still ‘ at risk ’. There are only two possible solutions. Either the prosecuting authorities have the courage, in the light of recent events and findings, to prosecute the notary or else the Youth Court must begin new proceedings with a view to restoring custody to the mother. This last point is not unimportant since Mrs X has been summoned to appear before the Antwerp Court of Appeal on 26 June on the grounds that she has twice attempted to keep the children with her at the end of an access visit. In the meantime, the mother and her parents have been duly acquitted on appeal in proceedings instituted against them by the notary for making a defamatory witness statement. They had already been acquitted at first instance. There are only two possibilities: either the mother ’ s complaint is defamatory or it is not, in which case the notary is guilty of incest. There is no other possibility." 20. Mr De Haes and Mr Gijsels published their second article on 17 July 1986. It included the following: "... On Tuesday 24 June Humo published in issue no. 2390 an article that caused a sensation: ‘ Incest authorised in Flanders ’. In that article Mr X, a notary from a distinguished Flemish family with close links to the highest financial circles in the land, was accused of having repeatedly raped and beaten his little boys, Wim and Jan. Those allegations were supported by a number of medical and psychiatric reports. Despite the evidence, the notary was awarded custody of the children. In the report, we paid due attention to the dubious role played by the gendarmerie and the network of extreme-right-wing contacts maintained by the X family, whose tentacles have reached the Antwerp law courts. This network of contacts is principally centred on staunch brown organisations like the VMO, Protea, the Stracke Noodfonds and the Marnixring. We also showed how Judges [YJ], [YA] and [YB] - who saw to it that the father gained custody - fitted into and around these shady movements. From the large number of letters we have received, it appears that half Flanders is shocked by such warped justice. The same question comes up again and again: what kind of a country are we living in? In the meantime, we have obtained even more information about what some of the most highly placed circles have been allowed to get away with, hand in hand with their lackeys in the courts and the gendarmerie. ... Humo had hardly come off the presses when Mr X personally telephoned one of the authors of the article to say, in a threatening tone: ‘ I am not a pederast. I am not a paedophile. The time will come when you will apologise to me!!! ’ And then he hung up. In the course of the legal proceedings, Mr X has devoted himself to making even more brutal intimidation attempts. For instance, he assaulted one of his children ’ s uncles in broad daylight on the Meir in Antwerp. When the children ’ s mother was acquitted of libel, he hurled abuse at her counsel within the precincts of the Antwerp law courts and in front of other people. His own counsel had to intervene to calm him down. One of the doctors who had found evidence of sexual abuse received a registered letter threatening him with criminal libel proceedings unless he withdrew the findings in his examination report. At least one other doctor has been bombarded with letters containing the crudest threats. The journalist covering the Antwerp Court of Appeal hearing on 26 June was pursued by the notary when he went out for some fresh air during a brief adjournment. The reporter had no choice but to escape by running between the fairground stalls of the Whitsun fair. The management of Humo and of the Dupuis publishing house have also been put under strong pressure. The X family were tipped off that an article was about to be published concerning the incest case. What happened? The printing was held up for hours, but the article was nevertheless published. ... This kind of brutal pressurising seems to ‘ work ’ very well within the system of justice. After the article was published, a mass of new information came in from all sorts of quarters. This unique incest case has been gathering notoriety for quite some time, not only in the professional circles of paediatricians and child psychiatrists but also in Crown Counsel offices, the youth courts and children ’ s refuges. Thanks to the fresh data, we now have an even better picture of how often and how treacherously the courts have manipulated the case - with, up to now, only one apparent aim: to promote, not the welfare of the children, but that of the notary. ... Likewise accepted were the results of an hour ’ s questioning by Detective Sergeants [ZF] and [ZG], during which Jan was once again forced to withdraw his accusations. Louis De Lentdecker, who was on the spot when Jan came out, wrote in De Standaard : ‘ He started crying, sobbing. He was completely distraught. Shaking with sobs, he said that he had been questioned again by two men, that he had said that none of it was true because he had been afraid and that he didn ’ t want to go home to his father ’ s but wanted to stay with his mother. And he clung to his (maternal) grandmother, crying his heart out. ’ What credibility can such an interview have? One of the statements obtained under duress certainly does not fit: according to [interview record] no. 2873, Jan stated that he had never seen his father naked. The notary himself told Louis De Lentdecker : ‘ It is said I used to stand around naked in front of them. There were evenings when the children would come rushing into the bathroom while I was having a bath. When that happened, I would send them out straight away. ’ Interviewed by [MN], a psychiatrist, the notary, anxious to defend himself, was even more categorical: ‘ Prior to the divorce, there were a few times when the children came upon X naked in the bathroom. It is understandable that the children ’ s attention was particularly attracted to the genitals. ’ Is it also a coincidence that Detective Sergeant [ZG] and his wife were the notary ’ s guests for Easter lunch? · In the middle of 1984, following a private meeting with Principal Crown Counsel [YJ] and the Advocate-General [YD], Professor [MA], a well-known child psychiatrist, is informally given the job of studying the criminal case file in detail. To this end, Principal Crown Counsel ’ s office sends him the various typescripts and tapes of the questioning sessions. Professor [MA] ’ s conclusions are contained in a number of reports sent to Principal Crown Counsel and the Antwerp Court of Appeal. His provisional conclusions are contained in a report of 22 June - just in time, as judgment is due to be given on 27 June. Principal Crown Counsel [YJ] knows that this supplementary report is being drafted, and what happens? Out of the blue, the Third Division of the Court of Appeal sits two days early and awards custody to the notary, ‘ without taking into account the documents filed by Professor [MA] after the close of the hearing ’. Was the Court of Appeal informed that Professor [MA] ’ s report, which was very unfavourable to the notary, might be filed before the close of the hearing, and is that why the Third Division sat two days early? What is more, not all Professor [MA] ’ s reports were filed after the close of the hearing. In fact, the Third Division had at least three other reports by Professor [MA] at its disposal, all of them to the same effect. So the judges are lying in their judgment. On 6 November 1984 the case again comes before the court, and this time the division relies on a totally different argument in order to dismiss Professor [MA] ’ s reports: ‘ Despite what he (Professor [MA]) appears to believe, he has not been appointed by Principal Crown Counsel at this Court to assist the Court in any way in relation to this case. ’ There are only two possibilities: either Professor [MA] was given Principal Crown Counsel ’ s office ’ s tapes so that he could study them, or else he stole them and must be prosecuted and convicted. If he has not been appointed by the court, Professor [MA] is not authorised to be in possession of documents from the criminal file. The courts are therefore once again using dirty tricks to give a veneer of honesty to an inexcusable judgment. · On 26 June 1984, to general astonishment, the President of the Third Division of the Antwerp Court of Appeal, Mrs [YA], together with her fellow judges [YB] and [YC], award custody to the notary who stands accused of incest. However, he can exercise his right of custody only under the supervision of his parents. Here we find ourselves faced with the most tortuous reasoning: either the notary is to be wholly trusted as far as his children are concerned and he can have custody; or he is not to be trusted and the children are at risk with him. Mrs [YA], however, opted for a hypocritical judgment. If the notary has to be supervised by his parents, he is obviously not trustworthy. And yet he is given custody. Can anyone make head or tail of this? The Third Division had already moved in this direction. At the hearing on 6 June the notary ’ s parents had been asked whether they would be willing to take on this onerous responsibility. To which, of course, they said ‘ yes ’. Coincidence or no, it was the only time that the notary ’ s parents attended a hearing. That fact makes it look very much like a put-up job. Had they been told in advance that this question was going to be put to them? · The grandparents are not the only ones to have been given information in advance. On 25 June, two days before judgment was officially given, the notary was waiting to pick his children up from school. He already knew that the Court of Appeal was going to award him custody. How could that be? · In the previous article, we mentioned the mother ’ s complaint that the detectives constantly twisted her words or simply did not write down what she said. That is not all. Statements by eyewitnesses have also been falsified ... · At a certain point the investigating judge in Malines, Mr [YE], a former CVP [Christian People ’ s Party] councillor for Willebroeck, appoints Dr [MB] as a (medical) expert. Dr [MB] comes to the same conclusions as Professor [MA]: Jan and Wim have been sexually abused. Dr [MB] warns the investigating judge unequivocally: ‘ It is important to avoid aggravating the father ’ s psychological problems and turning him into a confirmed homosexual or pederast. ’ Despite this, on 6 November Mrs [YA] and her fellow judges [YB] and [YC] confirmed the custody order in favour of the father. It is the most cowardly judgment we have ever read. The children ’ s mother is blamed for not having filed a copy of the report by the expert [MB], ‘ with the result that it is not possible to examine its contents ’. But how could the mother have filed this report? She is not even entitled to consult it, let alone to study it. In Belgium the law prevents anyone from obtaining any information so long as a judicial investigation is under way, because the investigation is secret. The Court of Appeal expressly acknowledges in its judgment that the judicial investigation is still under way, and yet Mrs [YA] blames the mother for failing to file this report! When it is for Principal Crown Counsel ’ s office to file an expert ’ s report! Despite the fact that the investigating judge [YE] has been in possession of Dr [MB] ’ s report since the end of August, we read in the Third Division ’ s judgment that ‘ Principal Crown Counsel ’ s office did not consider it necessary to inform the Court of this fact ’. Why did Principal Crown Counsel ’ s office refuse to forward this crucial expert report to the Court of Appeal? Because it was too unfavourable to Mr X? However that may be, Mrs [YA] put her name to a mass of legal nonsense. · On 5 September 1984 Louis De Lentdecker publishes his first article on the incest case under the title, ‘ Justice goes mad. A young woman fights for her children ’. Very shortly afterwards the Advocate-General [YD] summons De Lentdecker by telephone. As De Lentdecker comments in his second article, on 28 September, ‘ It is rare for a judge or Crown Counsel to summon a journalist to an interview in connection with pending legal proceedings. ’ The following extract from De Lentdecker ’ s article is also telling: ‘ When I asked why the court had not appointed three experts to look into the case from the psychiatric, medical and forensic points of view, the Advocate-General replied, and I quote his exact words, "These kids (i.e. Wim and Jan) have already had to drop their trousers too much for all sorts of examinations. The best thing is to leave them in peace." When I retorted that the court had, however, appointed an expert (De Lentdecker is referring to Dr [MB]) and that his report had barely been raised if at all, presumably because it contained damning findings as regards the father, the Advocate ‑ General replied: "It is not true that the expert report ordered by the court damns the father. In any event, I do not know what it says. Besides, the man ’ s findings are not valid - he completed his examination in five days." ‘ What crass bias on the part of the Advocate-General [YD] is revealed in those quotations. And what on earth could have made him take a journalist to task in this way? That is not one of his duties. The Advocate-General [YD] has since very properly been removed from this case for having exceeded his authority and he has been replaced by the Senior Advocate-General [YK]. ... There are also a few positive developments. On Thursday 26 June the Ninth Division of the Antwerp Court of Appeal upheld the October 1985 judgment of the Malines Criminal Court, which had acquitted the mother on the charge of removing the children from the notary ’ s custody. The important thing about that case, apart from the mother ’ s acquittal, is that the court duly took into account the evidence of Professor [MA] and the court-appointed expert [MB], who both testified under oath at the hearing that the children had indeed been sexually abused. The bench in this case was composed of judges other than [YA], [YB] and [YC], and Principal Crown Counsel was not [YJ]." 21. The applicants published their third article on 18 September 1986. It contained the following: "... In this article we reproduce photographs, drawings and quotations which we would have preferred not to publish. Most of these documents have been in our possession from the outset, but we did not want to run the risk of being accused of sensationalism. The courts are likewise in possession of this irrefutable evidence, and it is precisely because the Antwerp Court of Appeal and Youth Court refuse to have regard to it that we find ourselves obliged to publish it. The astonishment, anger and incredulity our readers feel are fully shared by us. Astonishment that such a thing is possible; anger because it is allowed; and incredulity because the ultimate guarantee of our democracy, an independent system of justice, has been undermined at its very roots. This is why, for the sake of the children Wim and Jan, we are publishing evidence which we would rather have left to rot under lock and key in cupboards in our archives. Guy Mortier Editor On Tuesday 2 September a Youth Court judge, Mrs [YL], made an interim order in the scandalous incest case involving an Antwerp notary. As everyone knows, this tragedy is being played out in the most highly placed financial spheres in the country, against the background of extreme-right-wing circles in Flanders. The Antwerp notary is accused by his wife of having sexually abused his two little boys, whom we are calling Wim and Jan, of having physically ill-treated them and of continuing to ill ‑ treat them. The Youth Court judge has now decided that the father should be awarded custody of his children, or rather should retain custody, since he had already been given it, in defiance of any concept of justice, by the Antwerp Court of Appeal. Yet the mother, who has not been accused of anything, and who has already been twice acquitted on a charge of libelling the notary, is not allowed to see her children more than once a month. ... This inexplicable judgment once again stands reason on its head. The case file is getting thicker and thicker and contains numerous medical certificates, horrifying drawings by the children of being raped by their father, photographs of anal irritations and marks left on the children ’ s bodies after blows from a cudgel - not to mention detailed psychiatric reports on the children: one by the court expert [MB], five by Professor [MA], an eminent Louvain paediatrician, and two, including a very up ‑ to ‑ date one, by Professor [MC], who recently examined the children in the greatest secrecy. Each time, it emerges clearly that the two children have been sexually and physically abused. Why does the Youth Court judge [YL] refuse to take account of this solid evidence in her judgment, especially as not one of the medical reports questions that there has been physical abuse? Does Mr X ’ s family really have so much influence and money that the Antwerp courts are incapable of giving an independent ruling? It is not for the press to usurp the role of the judiciary, but in this outrageous case it is impossible and unthinkable that we should remain silent. Up to now, we have dealt with this incest case as sensitively as possible. Now that the courts have definitively taken a wrong turning, we feel obliged, in the interests of the children, to reveal more details, however horrible and distasteful they may be for the reader. ... On what evidence did the Youth Court judge [YL] base her interim order? According to an article (the first of several) in Het Volk, the source of which appears to be the notary himself, [YL] allegedly based the interim order on a report by three experts she had appointed. According to Het Volk, that report makes it clear that ‘ there can never have been any question of any sexual abuse ’. The least that can be said is that Het Volk has been misinformed (indeed, it has since gone back on its first article). What exactly is the truth? Three court-appointed experts, Dr [MI], Dr [MJ] and Dr [MK], had Wim and Jan for observation during the holidays at the Algemeen Kinderziekenhuis Antwerpen ("the AKA" [a paediatric hospital]). Their report is not yet ready and therefore has certainly not yet been filed. The Youth Court judge and the parties have nothing in writing from them. The Youth Court judge [YL] has therefore rushed a decision through even before the experts ’ report is finished. This procedure in itself appears extremely suspect. But what is worse is that it leaves the mother completely defenceless. Since there is nothing official on paper, she cannot appeal against the Youth Court judge ’ s decision. Secondly, contrary to what is suggested, the three doctors referred to are not independent experts. Dr [MJ] and Dr [MK] work under Dr [MI] at the AKA. It is therefore difficult for them to challenge their superior ’ s findings. At the AKA these two doctors are not known for being the kind to put a spoke in their boss ’ s wheel. Thirdly, there is the question whether it was advisable to put Dr [MI] in charge of the team of experts. We do not wish to prejudge the report before knowing what it contains, but is it not singularly unfortunate that a person belonging to the same ideological camp as the extreme-right-wing notary should have been appointed in this case, which is already so politicised? Dr [MI] is married to the daughter of [ZH], who was a governor during the war. Readers will also remember that Mr X ’ s family has a very close relationship with ‘ blackshirt ’ circles. Dr [MI] also boasts, in front of hospital staff, that he supports the apartheid regime in South Africa, just like Mr X ’ s family. This is the same Dr [MI] who, some time ago, treated a maladjusted child by enrolling him in the extreme-right-wing Vlaams Nationaal Jeugdverbond (VNJ), just to teach him some discipline. Everyone is entitled to their political opinions, but in this sensitive case it would have been reassuring to see a less politically charged expert appointed. Just as inexplicable is the fact that the Youth Court judge [YL] keeps Mrs [ZI] on as the Child Protection Department officer attached to the court. Judge [YL] has to rely very considerably on the child protection officer for all her information, and therefore also for her view of the case; yet we have already disclosed that Mr X knows Mrs [ZI] well. Moreover, that fact appears in an interview record dated 6 October 1984. In this interview the notary repeatedly cites Mrs [ZI] as one of the people whom the courts can ask to testify to his basic kindheartedness. Is it really impossible to remove from this case everyone who has ideological or friendship ties with the X family? ... How does the notary defend himself against his children ’ s accusation that in May he beat Wim with ‘ a spiked cudgel ’? In a very confused way. It emerges from a transcript of the children ’ s story and a bailiff ’ s report that he beat Wim on 14 May. That day, the notary and his little boys were visiting Dr [MJ]. In the presence of his father, Wim told the doctor some very compromising things about him. As soon as they got home, the father started beating Wim. The next day, the notary went to see Dr [MJ] on his own and, strangely, said not a word about his son ’ s injuries. It was not until several days later, when the photographs were sent to the relevant authorities, that he came up with a story about Wim having fallen downstairs. Why did he not say this at the outset? The children confirm to Professor [MC] that Wim was beaten and that he did not fall downstairs at all. So the notary changes tack. On 2 June he calls in a bailiff who is a friend of his and who draws up a report according to which the children deny everything. Strangely, it is not the bailiff but the father himself who questions his little boys. So this report is worthless. On 5 June the notary comes up with yet another idea. A Dr [ML] issues a certificate stating that he can find no injuries. Which is quite possible, since three weeks have gone by in the meantime. Why does the notary have the fact that there are no injuries certified three weeks later, when he originally stated that the injuries were caused by a fall downstairs? The latest version is that Jan hit Wim. This figment of the imagination comes from the Youth Court judge herself. There ’ s bias for you. ... The ill-treatment which occurred in May was not an isolated incident (as we have already indicated on several occasions). As early as 10 January 1984 Dr [MG] sent the following results of his examination of four smear tests to a forensic medical examiner, Dr [MM]: ‘ Apart from amorphous matter, epithelial and mucous cells, I observed, in three out of the four samples, a structure with a triangular head on a long, more or less straight tail, which matches the description of spermatozoa. I observed the presence of one such structure in two of the three samples, and two in the third. ’ Other doctors also made the same findings. Subsequently, Professor [MA] and the court expert [MB] reach the conclusion, independently of each other, that Wim and Jan have been sexually and physically abused. The latest report is by Professor [MC]. In order to supplement an earlier report, this expert examined the children on twelve occasions between 1 August 1985 and 31 May 1986 - the elder without his mother present, Wim normally in his mother ’ s presence because at the beginning it was practically impossible to examine him without her. As Director of ‘ Kind en Gezin in Nood ’ [ ‘ Children and Families in Need ’ ], one of the departments of Leuvense Universitaire Ziekenhuizen [Louvain University Hospitals], Professor [MC] is one of the principal authorities in the field. In order to remain entirely uninfluenced in his work, he expressly decided to refuse any form of payment. His report contains the most horrific findings. According to it, the children have been beaten not once but several times with a spiked cudgel. This abuse is, moreover, inflicted as a form of ritual. Candles are lit; sometimes, the father wears a brown uniform and the cudgel has a ‘ sign of the devil ’ on it. Through the children, Professor [MC] was also able to discover where the father took his inspiration from. He found the sign of the devil in Volume I of the Rode Ridder ( ‘ The Red Knight ’ )(!), entitled De barst in de Ronde Tafel ( ‘ The cleft in the Round Table ’ ). The sign is accompanied by the following text: ‘ This is the symbol of the Prince of Darkness, an unknown magician and Grand Master of Black Magic! Even before the Round Table was created, he went away and no one knows where he is today! He devotes his exceptional knowledge and power to everything that is evil and negative! His sole objective is to sow confusion and destruction. He is a symbol of the violence which reigns in these times over humanity and justice! ’ Professor [MC] does not mince his words in his report: ‘ By way of conclusion, it can be said that Wim is the victim of repeated sexual and physical abuse and that his brother Jan is subjected to the same abuse to a lesser degree but, under very strong psychological pressure, is becoming increasingly psychologically disturbed, hence the drop in his school marks and the occasional inconsistencies in what he says in different interviews. In the interests of both children a court order should be made immediately to remove them completely and permanently from their father ’ s orbit. Any further delay would be medically unjustifiable. ’ Appended to the professor ’ s two reports are very precise descriptions of the children ’ s injuries, the statements made by the children, sinister drawings by Wim and Jan of sex scenes with their father (often represented with horns), and photographs. Both reports are in the hands of the experts [MI], [MJ] and [MK]. Judge [YL] also has them. Just as she has Professor [MA] ’ s five reports and the report by the court expert [MB]. How can Mrs [YL] maintain that there is no evidence? Do the children have to be beaten or raped before her eyes before she believes it? ... Similar accusations by the children against their father were also subsequently recorded by Professor [MA], the court expert [MB], the two detective sergeants [ZF] and [ZG] in the presence of Wim ’ s schoolteacher, and, lastly, Professor [MC]. On the other hand, there is one retraction of the statements in an interview (of which there is only a single, confused minute on tape) carried out by Detective Sergeant [ZJ], since suspended, who intimidated Jan with a weapon; one in an interview with Detective Sergeants [ZF] and [ZG], at the end of which Jan broke down completely (as Louis De Lentdecker happened to witness); and one retraction made by Jan to Professor [MC], in his father ’ s presence. The crucial question remains: is any mother capable of inventing all this? Even more to the point, would two young children - they will be 6 and 9 respectively this month - be capable of keeping up their accusations for over two and a half years if those accusations had been invented and forced on them by their mother? And when could the mother have coached her children in accusations such as these? It should not be forgotten that since 25 June 1984 the notary has had custody of the children by order of the Third Division of the Antwerp Court of Appeal. For more than two years the father has had a great deal more influence over these children than their mother, who has the right to see her children only from time to time - a right of access with which the notary has frequently not complied. What is more, if the notary has such a clear conscience, why does he declare war on anyone who puts legal or other obstacles in his path? Why has he already threatened so many people in connection with this case? In this article we shall mention only the most recent threats and acts of intimidation. ... The case file also contains the report of an interview Professor [MA] had on 23 May 1984 with Principal Crown Counsel [YJ] and the Advocate-General [YD]. We realise how delicate it is to quote from letters that were not intended for publication, but needs must when the devil drives. Professor [MA] describes how the interview went: ‘ After I had discussed my problem and my request, namely that three experts should be appointed, I quickly realised that Principal Crown Counsel wished to proceed with the case impartially and without prejudging the issues, but that Mr [YD] already had a very clear idea of what should be done - "The children ’ s story was made up, perhaps fed to them by the mother, and the children should be entrusted to the care of their grandparents, with the father also being involved in the process." Mr [YD] brushed aside my request for an expert report rather brusquely. In his view, judges had far more expertise than doctors in this field, and subjecting the children to further expert investigations and interviews could only do them more harm. Principal Crown Counsel was much more balanced in his response and considered that an expert report was indeed called for. Moreover, Principal Crown Counsel expressed serious reservations about Mr [YD] ’ s suggestion. He said that the children ’ s paternal grandfather, to whose care Mr [YD] proposed entrusting the children, was, and I quote, "mad". At every reception at which he encountered Mr X, he would see Mr X senior explaining, very clearly and without attempting to disguise his meaning, that Hitler should come back to this country. He added that this impression that the grandfather was "mad" was shared generally by all the guests at such receptions. And he expressly told Mr [YD] that he would consider it totally unjustified to entrust the children to the care of their paternal grandfather. ’ Despite being in possession of this preliminary information, the Antwerp courts entrusted the children, at first instance, to the care of the notary under the supervision of his ‘ mad ’ father. In the course of the meeting with Professor [MA], Principal Crown Counsel [YJ] also cast doubt on the notary ’ s probity. Professor [MA] gave the following evidence in his own defence before the Ordre des Médecins [Medical Association]: ‘ He (Principal Crown Counsel) described how Mr X had been made a notary, against the advice of the judicial bodies, on the last day in office of the late Mr [ZK] (then Minister of Justice) and that, furthermore, in a very short space of time (a few years) he had succeeded in transforming an almost defunct practice into one with an official profit of 32 million francs a year. He obviously doubted whether a notary could make such an annual profit by legal and honest means in view of the property crisis at the time, and thought he remembered that Mr X had already been the subject of legal proceedings at the time in connection with his activities as a notary. ’ He was right. In 1984 the notary was even suspended by the Disciplinary Board. Principal Crown Counsel ’ s office (once again!) took no account of that penalty. In the meantime a fresh criminal complaint has been lodged against the notary alleging forgery. The worst thing is the notary ’ s publicly expressed Nazi sympathies. A statement taken by Malines CID shows that he calls the genocide of six million Jews an ‘ American lie ’. At his wedding the notary and his father gave the Nazi salute and struck up the ‘ Horst-Wessel Song ’ at the top of their voices. But the notary goes much further. He wants to bring his children up according to Hitler ’ s principles. That is why they must learn to bear pain and to endure humiliation and fear. Hitler himself described a Hitlerite education: ‘ My educational philosophy is tough. The weak must be beaten and driven out. My élite schools will produce young people whom the world will fear. I want young people to be violent, imperious, impassive, cruel. That is what young people should be like. They must be capable of bearing pain. They must not show any weakness or tenderness. Their eyes must shine with the brilliant, free look of a beast of prey. I want my young people to be strong and beautiful ... Then I can build something new. ’ There is little to add. Except to say that it is high time that, in the interests of the children, the medical certificates, the reports and evidence produced by the court expert, the bailiff and the child psychiatrists should at last be taken seriously and that a decision in this case be given on the basis of facts and not on the basis of the influential status of one of the parties. Public confidence in the judiciary is at stake." The article was illustrated with what the applicants described as photos of injuries sustained by" Wim" in May, two drawings said to be by "Jan" and another said to be by" Wim "; it also contained a transcript of part of Detective Sergeant [ZB] ’ s alleged questioning of "Jan" on 6 March 1984. 22. On 6 November 1986 the fourth article by Mr De Haes and Mr Gijsels appeared. It read as follows: "... Last Thursday the Wim and Jan case took a dramatic legal turn. On an application by Principal Crown Counsel [YM], the Court of Cassation withdrew the X case from the Antwerp court and transferred it to the Ghent tribunal [de première instance] in the hope that the Ghent magistrats would adopt a less biased approach. It is certainly none too soon. The battle between the legal and medical professions in the Wim and Jan case had reached a climax. In a final attempt to make the Antwerp magistrats see reason, four eminent experts sent a joint letter to Principal Crown Counsel [YJ], declaring on their honour that they were 100% convinced that Mr X ’ s children were the victims of sexual and physical abuse. The professional competence of these four experts cannot be questioned - even by the Antwerp magistrats. They are Professor [MD] (Professor of Paediatrics at UIA [Antwerp University Institution], Medical Director of the Algemeen Kinderziekenhuis Antwerpen and Director of the Antwerp Vertrouwensartscentrum [medical reception centre for abused children]); Professor [MC] (Professor of Paediatrics at Louvain C[ atholic ] U[ niversity ], Head of the Gasthuisberg [University Hospital] Paediatric Clinic in Louvain and President of the National Council on Child Abuse); Professor [MA] (Professor of Child and Youth Psychiatry at Gasthuisberg [Hospital], Louvain C[ atholic ] U[ niversity ], who was appointed by Principal Crown Counsel [YJ] to study the case); and Dr [MB] (a child psychiatrist and psychoanalyst, appointed as an expert by the court). With their letter they enclosed a note listing ten pieces of evidence, any one of which on its own would, in any other case, have led to criminal proceedings or even an arrest. The aim of these scientists was clear. They were seeking from the courts a temporary ‘ protective measure ’ whereby the children would have been admitted to one of the three [medical reception centres in Flanders for abused children] pending a final court ruling. There was no response. The relevant magistrats did not react. The Ordre des Médecins, however, did - it forbade Professors [MA] and [MC] to voice their opinions. Yet again the messenger is being shot without anyone listening to the message. Politicians also reacted. The Justice Minister, Jean Gol, asked to see the file and is following the case closely but is powerless to intervene because of the constitutional separation of powers. And the MEPs Jef Ulburghs, Anne-Marie Lizin ... and Pol Staes ... have laid a draft resolution before the European Parliament requesting a proper investigation and urgent measures to put an end to the children ’ s dangerous predicament. The public are finding the case harder and harder to ‘ swallow ’. The Justice Minister ’ s office is inundated with dozens of indignant letters. The weekly silent demonstrations on the steps of the Antwerp law courts continue and last week, during Monday night, posters were stuck up all over the centre of town revealing Mr X ’ s surname and forename. The poster campaign, which aroused mixed feelings among journalists and lawyers, has given a new dimension to the controversy surrounding the X case. ..." 23. On 27 November 1986 the applicants ’ fifth article appeared. It read as follows: "... Our prediction of a fortnight ago that the agonisingly slow progress being made in the Wim and Jan case was likely to leave the case stranded in the Antwerp courts has come true. In the teeth of all the evidence, the Court of Cassation has held that the Antwerp judiciary cannot be accused of any bias in this incest case and that the whole case can therefore continue to be dealt with in Antwerp. In parallel with the Court of Cassation ’ s decision there have been some remarkable events. The notary Mr X, so called in order to protect the identities of Wim and Jan, now shows himself in public and is giving interviews, sometimes even accompanied by his children. The fact that his name (and therefore the names of his little boys) now appears in the press does not appear to bother him. Another consequence is that the media are now breaking several months ’ silence, and some editors have really gone off the rails. It is very worrying, for example, that certain daily and weekly newspapers are trying to play down the X case, depicting it as a run-of-the-mill divorce case in which both parties are hurling the most disgusting accusations at each other. In these really not very cheering proceedings the ‘ divorce ’ aspect is only an insignificant detail, and moreover is quite another matter. Indeed, we have not published a single word on that subject, nor do we wish to do so, since it is a purely private matter. The real issues in the case with which we are concerned are very serious accusations of incest and child abuse, supported by medical certificates and examinations, and the extremely questionable manner in which those accusations are being dealt with by the courts. This state of affairs is no longer part of two people ’ s private life but concerns us all. Moreover, the case of Mr X is simply the tip of the iceberg and is representative of other incest cases. It is for that reason, and that reason only, that we have written about it. In the meantime, certain daily and weekly newspapers are indulging in the most unsavoury sensationalism and, without really knowing the case, allowing the notary whole pages in which to proclaim his version of the facts. Of course, freedom of expression is sacred. But have we ever pushed Wim and Jan ’ s mother into the foreground? Have we ever published her opinion of the case? No. Humo ’ s reports on Wim and Jan have always been based on our own investigations alone and on innumerable authentic documents. We have not written a single word that was not based on the reports of doctors, paediatricians, court experts and a bailiff. Since our first ‘ Incest authorised in Flanders ’ article came out as far back as 26 June, the notary ’ s family has tried to get Humo ’ s management round the dinner table to ‘ discuss ’ the case. The editorial staff have always taken a consistent line: no discussion - send us documents proving us wrong and we will publish them. We also made this offer on [the television programme] Argus, but up to now Mr X has not got round to sending us his ‘ equally numerous pieces of expert evidence in rebuttal ’. For all his assertions in Knack and De Nieuwe Gazet that these exist, it is strange that those papers ’ journalists have yet to receive this rebutting evidence. All the notary has tried to do so far is to muddy the waters and present the case as if it were a matter of his word against his wife ’ s, an argument along the lines of ‘ Oh no, I didn ’ t ’ and ‘ Oh yes, you did ’. ... In the 5 November issue of Knack the notary reveals yet another new discovery: the photographs were not taken by the bailiff but by his ex-wife, and were faked with ‘ red ointment ’. We repeat: if the bruises were caused by falling downstairs, why would they need to be faked with red ointment? It is true that his wife took photographs, but in the presence of the bailiff. And they were expressly annexed to the bailiff ’ s report. But irrespective of that, the relevant point is that the bailiff did take photographs himself. ... Nothing but red ointment? The whole thing rigged so as to be more visible? ... Besides, those are not the only photos of injuries to have been taken. Dr [MC] also took numerous photographs of the injuries and of an ‘ abnormal irritation of the penis and the peri - anal region ’, and they were annexed to his reports. There is no evidence, the notary asserts. Will it really be necessary to publish a photo of his little boys ’ sore anuses? The court, for which the bailiff ’ s report was drawn up and the photographs taken, does not appear to have entertained any doubts as to their authenticity and added them to the case file four months ago without comment. With good reason. [ZM], the bailiff, took the photos with a polaroid camera in the presence of witnesses. That type of camera takes just seconds to produce a photograph. It is not possible to tamper with them. Mr X knows very well why he has not instituted proceedings against the bailiff and why he has published his insinuations only in certain newspapers and magazines. This is not the first time that the notary has tried bluff tactics. The following extract from Knack is telling: ‘ He freely admits that he has put pressure on several doctors, beaten up his brother-in-law and, after receiving a tip-off from inside the Humo editorial team, issued threats against Albert Frère ’ s magazine in order to try to get his name deleted from the articles, but he does not see any of this as intimidation and considers that in his unhappy situation, others would have behaved much worse. ’ The allegation that Mr X tried to have his name deleted from Humo is one of his many lies. At that time he was asking for no more and no less than complete censorship: the article was not to be published! For our part, it has never for a moment even crossed our minds to mention the name of the notary and his family. That name has therefore never appeared in a single draft, not even a preliminary one. For Humo it has never been a matter of attacking an individual (and in this connection we dissociate ourselves completely from the billposters who are plastering the notary ’ s name all over Antwerp ) but of the dubious way in which the case has been handled. ... Mr X delights in telling everyone that he knows that the courts and the officially appointed experts are on his side. ‘ He told us that the report by the three experts from the AKA (appointed by the Youth Court judge [YL] - Ed.) would be published on Wednesday, but that he could already reveal that the report proves his total innocence ’ ( Algemeen Dagblad, 1.11.86). ‘ This week he hopes to distribute the reports by Dr [MI], Dr [MK] and Dr [MJ], appointed as experts by the Youth Court a year ago(!). "They are unanimous and totally favourable to me" [he says] ... ’ (Knack, 5.11.86) Mr X was so positive that we fell into the trap (see our previous article) of believing that the reports cleared him of all suspicion. Since at that point the reports had not been filed, we asked: ‘ Does the notary have a hitherto unsuspected gift of clairvoyance or has he had an opportunity to consult the reports even before they are filed with the Youth Court? ’ We don ’ t know. But what we do know is that in his interviews the notary is cocking a snook at the truth. The three reports are not entirely favourable to him. The conclusions of the report by the psychiatrist [MK], wholly confused though they indeed are, explicitly indicate that the evidence on the case file raises a strong presumption of sexual and physical abuse but that there is no absolute, irrefutable proof. Using the conditional mood, [MK] adds that Wim and Jan ’ s stories could have been the product of ‘ coaching ’, not to say spoon-feeding, by the mother. In other words, [MK] is saying that in fact he doesn ’ t know. At all events, one can hardly say that this report is entirely favourable to Mr X. The notary has also lied to the press about other things. According to him, the children are afraid of Malines, the mother ’ s environment - whereas according to [MK] ’ s report, one of the children is very positive towards his mother and very negative towards his father. The other child sometimes would prefer to stay in Antwerp and at other times to live in Malines. Moreover, [MK] ’ s opinion is that the children should be placed with a foster family, with access for both parents. Last week Dr [MJ] ’ s expert report also came in. A key witness in relation to the ill ‑ treatment of 16 May, [MJ] concludes that it never took place. Yet another sample of the expert ’ s wisdom: on the one hand, he states in his report that the children want to stay with their mother but, on the other, he recommends placing them with the father after the divorce, with limited access for the mother. As an immediate step, he recommends, just like [MK], that the children should be placed in a neutral setting, with generous access for both parents. No doubt you have to be an expert in order to understand so many contradictions. ... In contrast to the contradictory and inconsistent reports of these doctors, there are the irrefutable, unequivocal reports of Professor [MA]: ‘ Given that the children have again been subjected to sexual abuse by their father, I consider that any further contact between the father and the children would for the time being be extremely prejudicial to the children ’ s subsequent development, and the situation is particularly dangerous for them in that their mental development and that of their personalities are seriously jeopardised. This being so, I consider it necessary to intervene as a matter of urgency under section 36 (2) (children at risk) of the Child Protection Act. ’ (August 1984) The court expert [MB], appointed by the investigating judge [YE], stated: ‘ All the examinations of Wim and Jan lead to the same conclusion: the two children describe sexual contact with Daddy. Wim is in the midst of assimilating the psychological trauma into his subconscious. For Jan this process of assimilation is more difficult. The children ’ s statements appear credible and I have set out a series of arguments on this point. ’ (August 1984) Dr [MC], who has examined the children twenty-two times (and not twelve as the notary, lying again, states in De Nieuwe Gazet ) and has found non-accidental injuries on seventeen occasions, states: ‘ In the interests of the two children there should be an immediate court order withdrawing them totally and permanently from their father ’ s orbit. Any further delay would be medically unjustifiable. ’ (May 1986) It remains a disgrace that the Antwerp courts refuse to take this evidence into account." The article was illustrated with two other drawings said to be by the children; it also contained what the applicants said was an extract from a report by the bailiff [ZM] describing bruises on both legs of the younger boy. 24. Following the judgment of 29 September 1988 (see paragraph 11 above) Mr De Haes and Mr Gijsels published an article on 14 October 1988 that contained the following: "... On 29 September the Brussels tribunal de première instance gave judgment in the case brought against Humo by the judges of the Antwerp Court of Appeal as a result of our articles about the notary Mr X. Humo lost all along the line. This judgment is not only desperately short on reasoning but also completely unsatisfactory. The Vice ‑ President, [YF], and the other judges, [YG] and [YH], dealt with the case carelessly. They were not willing to listen to Humo ’ s very strong arguments, while the debate about the relationship between the media and the judiciary, which was important for the press as a whole, was purely and simply brushed aside. We wonder whether their Lordships actually read Humo ’ s submissions. The Brussels tribunal de première instance chose the easy way out, holding it against us that the ‘ insinuations and offensive accusations ’ against the judges ‘ have no foundation except gossip and malicious distortions ’. What the whole of Flanders knows, except apparently Messrs [YF], [YG] and [YH], is that our doubts as to the integrity of the Antwerp Court of Appeal magistrats were (and still are) based on a number of medical reports, which we have always cited verbatim, so there can be no question of malicious distortion. Are journalists acting unlawfully where they confine themselves to verbatim extracts from medical reports and to known and proved facts? We are also accused of sullying the Antwerp judges ’ private lives. But at no time has Humo ever brought up anything to do with the judges ’ private lives. We have kept, strictly and deliberately, to those matters that were directly linked to the case and were capable of verification in history books and press articles. How can matters which are so manifestly and indisputably in the public domain suddenly be considered aspects of private life? Further on in the reasons for their judgment, Judges [YF], [YG] and [YH] say bluntly that we ‘ [accept] as true, without more, the statement made by Mr X ’ s former wife and her expert adviser (Professor [MA]) ’. We care not a jot about Mr X ’ s former wife ’ s statement. We have always concentrated solely on the medical findings and reports of innumerable doctors. Yet the tribunal de première instance simply skirts round these facts. Furthermore, one of the essential aspects of Mr X ’ s case has cleverly been evaded: the conflict between the medical profession and the judiciary. Journalists have a duty to strive ‘ to respect the truth ’, says the court - a dictum to which we gladly subscribe, but judges are under the same duty. The judgment of the tribunal de première instance becomes positively Kafkaesque when it attacks the medical reports by simply referring to the judgments of the Court of Appeal judges, who deliberately failed to take those reports seriously - precisely the attitude that Humo has condemned. For which we had our reasons. But what do the judges of the Brussels tribunal de première instance do? They use their fellow judges ’ judgments as evidence against Humo. In other words, the truth is to be found only in the judgments of the Antwerp judges. If that is the case, anyone who challenges a judgment, including in the press, runs the risk of being put in the wrong since a judge is always right. It is not the truth but ‘ the official truth and nothing but the official truth ’ which will be published in our newspapers in future. Is that what people want? Clearly, the Brussels judges [YF], [YG] and [YH], did not manage to give judgment with the necessary detachment and independence on their fellow judges of the Antwerp Court of Appeal. They are thus adhering to the line of biased judgments which we have condemned in the case of Mr X. Humo will accordingly be appealing against this judgment." | This case concerned a judgment against the applicants, two journalists, for defamation of magistrats. They applicants alleged in particular that the judgments against them had infringed their right to freedom of expression and that they had not had a fair trial by an independent and impartial tribunal. |
937 | Concurrent judicial functions in the same case | I. THE CIRCUMSTANCES OF THE CASE 11. On 8 April 1986 the applicant, who was then aged 44, underwent a gynaecological operation under general anaesthetic at Strasbourg Hospital. 12. On wakening, she suffered a neurological syndrome. In the days that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset. Since then she has been 90% disabled; she is hemiplegic, has difficulty coordinating her upper limbs, can speak only with difficulty and suffers from double vision. 13. On 27 May 1986 the applicant made an urgent application to the President of the Strasbourg Administrative Court seeking the appointment of an expert. In an order of 28 May 1986 the President appointed an expert, who filed a report on 2 June 1986 in which he concluded that there had not been any medical error. 14. On 6 August 1987 (after a preliminary claim of 22 June 1987 had been refused) the applicant brought an action for damages against Strasbourg Hospital in the Strasbourg Administrative Court. 15. In submissions of 21 October 1987 the applicant criticised the findings set out in the report of 2 June 1986 and applied for a detailed, thorough expert opinion. 16. In letters of 10 November 1988 and 11 January 1989 the applicant’s lawyers sought to have the case set down for hearing. The clerk of the Administrative Court replied (in letters of 18 November 1988 and 13 January 1989) that on account of the backlog of work, it was not currently possible to foresee the date on which the case might be set down for hearing. 17. The hearing was eventually listed for 19 April 1990. 18. In a judgment delivered on 25 May 1990 the Strasbourg Administrative Court ordered further inquiries into the facts with a view to commissioning a report from a panel of two experts. 19. On 23 October 1990 the experts filed the following findings: “As regards the cerebral arterial thromboses that occurred on 8 April and 17 April 1986, nothing in Mrs Kress’s clinical condition or in the results of the tests made them foreseeable. The treatment of this complication was appropriate to the patient’s state of health and in accordance with the current state of scientific knowledge. As regards the scald on the left shoulder, the experts attribute it to a lack of assistance and organisation in the department.” 20. The applicant criticised that expert report and in reasoned submissions of 22 March 1991 quantified the damage she had sustained. 21. At the request of Strasbourg Hospital the hearing set down for 4 April 1991 was postponed to 13 June 1991. 22. In a judgment delivered on 5 September 1991 the Strasbourg Administrative Court assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at 5,000 French francs and dismissed the rest of the claim for damages. 23. The applicant appealed against that judgment to the Nancy Administrative Court of Appeal. In a judgment of 8 April 1993 that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation, the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department. 24. On 11 June 1993 the applicant, represented by a member of the Court of Cassation and Conseil d’Etat Bar, appealed on points of law against that judgment to the Conseil d’Etat and filed full pleadings on 11 October 1993. She referred to a judgment of the Judicial Assembly of the Conseil d’Etat of 9 April 1993 that had been delivered in the meantime (the Bianchi judgment of 9 April 1993, Revue française de droit administratif 1993, p. 574), in which no-fault liability in hospital cases had been extended to cover the risks of treatment, and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault. She submitted that there had been a causal link between the operation and the damage, that the existence of the risk had been known, even if it was statistically only a very slight one, and that she had, within the meaning of the Bianchi judgment, sustained extremely serious special damage. 25. Strasbourg Hospital filed a defence on 12 September 1994 and the applicant replied on 16 January 1995. The hospital lodged a rejoinder on 10 March 1995. 26. The case was heard in public on 18 June 1997 by the 5th and 3rd sections sitting together and considered on the basis of a report by the 5th section. After hearing the observations of the reporting judge, those of the parties’ lawyers and, last, the Government Commissioner’s submissions, the Conseil d’Etat reserved judgment. Counsel for the applicant then produced a memorandum for the deliberations ( note en délibéré ) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant’s afflictions since the operation of 8 April 1986. 27. In a judgment delivered on 30 July 1997 the Conseil d’Etat dismissed the applicant’s appeal on the following grounds: “It appears from the evidence submitted to the courts below that Mrs Kress underwent a hysterectomy on 8 April 1986 at the Strasbourg Regional Hospital Centre. Following that operation, which took place normally, post-operative complications, which supervened twice, caused serious, disabling after-effects and damage for which Mr and Mrs Kress sought compensation, relying in the courts below on mistakes that they alleged had been made by the hospital. Before this Court Mr and Mrs Kress have maintained for the first time that the hospital should have been held liable without fault. On the basis of the unappealable assessment it made of the facts, the Nancy Administrative Court of Appeal inevitably held that no-fault liability on the part of the Strasbourg Regional Hospital Centre for the damage relied on by Mrs Kress had not been made out. In so doing, that court did not make any error of law, seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain.” | This case concerned the presence of the Government Commissioner (commissaire du gouvernement) at the deliberations of the Conseil d’État. The applicant submitted that she had not had a fair trial in the administrative courts. She complained in particular that the fact that the Government Commissioner had been present at the trial bench’s deliberations – which were held in private – when he had earlier submitted that her appeal should be dismissed, had cast doubt on the court’s impartiality. |
1,042 | Just satisfaction (Article 41 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1929. She was retired and living in Bucharest before her death on 29 December 2007. 7. On 24 October 2000 the applicant, aged 71 at the time, was attacked, bitten and knocked to the ground by a pack of around seven stray dogs in front of her home in the Pajura neighbourhood, a residential area in Bucharest. As a result of the fall, the applicant suffered a head injury and fractured her left thigh bone which required four days’ hospitalisation in the CFR Hospital in Bucharest. After being discharged from hospital she was prescribed medical treatment which proved to be too expensive for her. 8. Following the incident, the applicant started suffering from amnesia and shoulder and thigh pains and had difficulty walking. In addition, she lived in a constant state of anxiety and never left the house for fear of another attack. By the year 2003 she had become totally immobile. 9. At the time of the incident the applicant and her husband were retired and their entire monthly income amounted to the equivalent in Romanian lei (ROL) of 80 euros. They claim that this amount was wholly insufficient for her medical treatment, and that they had to live at subsistence level. As a result, the applicant had lost weight. 10. The applicant’s state of health continued deteriorating with the result that two and a half years after the incident, on 4 June 2003, she was declared disabled by a medical panel of the Bucharest Local Council and was offered financial aid and free access to medical assistance and medicines. 1. The civil action for damages against the Bucharest City Hall 11. On 10 January 2001 the applicant, represented by her husband, filed a civil action with the Bucharest District Court ( Judecătoria Sectorului 1 ) requesting damages of ROL 100,000,000 (EUR 4,000) under the provisions of the Civil Code on civil liability for torts, and claiming that, as a result of the attack, she had become disabled. The applicant filed the action against the Bucharest Mayor’s Office because, according to the words embossed on the stamp used on a letter from the Animal Control Agency ( Administratia pentru Supravegherea Animalelor - ACA), the latter was a body under the authority of the Mayor’s Office. 12. At the first hearing the court noted that the applicant had not paid the statutory court fee and ordered the payment of ROL 6,145,000 (EUR 250). Being unable to pay this sum, which amounted to her entire family income for four months, the applicant paid only ROL 500,000 (EUR 20), which she borrowed from various acquaintances. 13. By a judgment of 6 March 2001 the court declared the applicant’s civil action invalid for non-payment of the full court fee. 14. On 19 June 2001 the Bucharest County Court ( Tribunalul Bucuresti ) allowed an appeal by the applicant against the judgment of 6 March 2001. The County Court held that the first-instance court should have decided the case within the limits of the court fee paid and that in any event, the applicant was exempted by law from paying a court fee for this type of action. The court further held that the amount already paid should have been treated as a deposit, to be returned at the end of the proceedings. With respect to the merits of the case, the court held that the ACA, a public body under the authority of the Bucharest Mayor’s Office, had indeed not taken all necessary measures to avoid endangering the lives of the population and to preserve their health and physical integrity, and had thus violated the provisions of Bucharest Municipal Council decision no. 38/1996. According to that decision, the ACA had a duty to capture, control and sterilise all stray dogs in order to prevent any danger they may pose to the life, health and physical integrity of the population. The court further held that the attack had endangered the applicant’s life and health, causing her physical and psychological suffering and depriving her of a normal life because she was so traumatised that she did not dare leave her apartment for fear of another attack. Lastly, the County Court ordered the Bucharest Mayor’s Office to pay the applicant non-pecuniary damages, within the limits of the deposit paid, namely, ROL 10,000,000 (approximately EUR 400), which was 10% of the damages claimed by the applicant. 15. The Bucharest City Hall lodged an appeal on points of law ( recurs ) against the judgment of 19 June 2001, claiming that it did not have legal capacity as defendant because the ACA was placed under the authority of the Bucharest Municipal Council, and not the Bucharest Mayor’s Office. 16. By a final judgment of 17 December 2001, the Bucharest Court of Appeal allowed the appeal on points of law and dismissed the applicant’s action on the grounds that it had been lodged against a party who did not have legal capacity as defendant. The court found that the ACA had been created by decision no. 38/1996 of the Bucharest Municipal Council and that therefore the latter institution was the one against which the applicant should have brought her court action. 2. The civil action for damages against the ACA and the Bucharest Municipal Council 17. On 28 June 2002 the applicant, represented by her husband, filed a civil action with the Bucharest District Court requesting damages of ROL 50,000,000 (EUR 2,000) from the ACA and the Bucharest Municipal Council. The applicant did not pay the court fee. 18. On 3 December 2002 the Bucharest District Court dismissed the action, holding that the Bucharest Municipal Council did not have legal standing as defendant. With regard to the ACA, the court found that on 31 October 2001 the Municipal Council had adopted decision no. 287 by which the ACA was closed down and the control of stray dogs was transferred to the mayor’s offices of the six Bucharest districts. 19. By a final judgment of 13 March 2003, the Bucharest Court of Appeal dismissed an appeal on points of law lodged by the applicant and upheld the judgment of the first-instance court. | In 2000 the second applicant, 71-year-old at the time, was attacked, bitten and knocked to the ground by a pack of stray dogs in a residential area of Bucharest. Following the incident, she started to suffer from amnesia and from shoulder and thigh pains and had difficulty walking. She lived in a constant state of anxiety and never left the house for fear of another attack. By 2003 she had become totally immobile. Her husband and heir continued her case following her death in December 2007. |
845 | null | I. THE CIRCUMSTANCES OF THE CASE A. Background to the case 6. The applicants were born in 1977 and 1982 respectively and live in Wald-Michelbach. Both applicants were involved in a civil-liberties union which campaigned against the general retention of telecommunications data. In that context both applicants organised public protests and published articles criticising State surveillance. The first applicant was also a member of the Parliament of Schleswig-Holstein. 7. In June 2004 a legal obligation for telecommunications providers to store personal details of all their customers, even of customers where such details were not necessary for billing purposes or other contractual reasons (prepaid (“pay-as-you-go”) mobile telephone SIM cards), was introduced via amendments to the Telecommunications Act ( Telekommunikationsgesetz ). Until these amendments came into force, telecommunications service providers had been entitled solely to collect and store the data necessary for their contractual relationship. Where prepaid mobile telephone SIM cards were concerned, no such data had been considered necessary. These amendments were made in the framework of a fundamental revision of the Telecommunications Act which was felt necessary after the adoption of five EU Directives on 7 March and 12 July 2002 which had to be transposed into German Law before July and October 2003. 8. Both applicants use prepaid mobile phone SIM cards and had to register under section 111 of the Telecommunications Act (see paragraph 27 below) certain personal details with their respective service providers when activating those SIM cards. B. Proceedings before the Federal Constitutional Court 9. On 13 July 2005 the applicants lodged a constitutional complaint against, amongst other provisions, sections 111, 112 and 113 of the Telecommunications Act. Section 111 of this Act introduced the obligation to collect and store the telephone numbers, the name, address and date of birth of an allocation holder and the effective date of the contract (see paragraphs 27-28 below). Sections 112 and 113 of the Telecommunications Act contained an automated and a manual procedure for accessing the data stored under section 111 (see paragraphs 29 and 31 below). The applicants argued that the above-mentioned sections violated their right to privacy of correspondence, post and telecommunications as well as their right to informational self-determination ( Recht auf informationelle Selbstbestimmung – see paragraph 25 below). 10. Section 111 of the Telecommunications Act was amended by an Act of 21 December 2007 by which other identifiers of an allocation were included under the obligation to store subscriber data and the data to be stored were expanded to include the respective device number, in cases in which a mobile-communication end device was made available together with the mobile-communication allocation. 11. The applicants extended their pending constitutional complaint to include the amended version of the Telecommunications Act. Consequently, the Federal Constitutional Court considered in its judgment the Telecommunications Act as in force on 1 January 2008. C. Decision of the Federal Constitutional Court (no. 1 BvR 1299/05) 12. On 24 January 2012 the Federal Constitutional Court decided, in so far as relevant for the present case, that sections 111 and 112 of the Telecommunications Act were compatible with the Basic Law ( Grundgesetz ), that section 113(1), sentence 1, was compatible with the Basic Law when interpreted in conformity with it, and that sections 112 and 113 required independent enabling legislation for the retrieval of data by the authorities listed or referred to therein (see paragraphs 29 and 31 below). Concerning the parts of the applicants’ constitutional complaint that are not at issue in the present proceedings, the Federal Constitutional Court held that the manual information procedure set out in section 113(1) could not be used for the assignment of dynamic IP addresses and that the security authorities could only request information on access codes under section 113(1) if the statutory requirements for their use were satisfied. 13. It also noted that according to the federal government, the automated retrieval procedure under section 112 of the Telecommunications Act was of primary importance. Experience had shown that the number of manual retrievals carried out under section 113 of the Telecommunications Act was between 3% and 5% of the number of automated requests made under section 112 of the Telecommunications Act. 14. As regards the relevant parts of the applicants’ constitutional complaint, the Federal Constitutional Court first held that the provisions being challenged interfered with the right to informational self-determination. It further stated (as translated into English on the Federal Constitutional Court’s website; references to the court’s jurisprudence have been omitted in the quotes below) as follows: “122. a) The right to informational self-determination takes account of endangerments and violations of personality which arise in the conditions of modern data processing from information-related measures. The free development of personality presupposes the protection of the individual against unrestricted collection, storage, use and transmission of the individual’s personal data. This protection is therefore covered by the fundamental right of Article 2(1) in conjunction with Article 1(1) of the Basic Law. In this respect, the fundamental right guarantees the authority of the individual in principle himself or herself to decide on the disclosure and use of his or her personal data. The guarantee of the fundamental right takes effect in particular when the development of personality is endangered by government authorities using and combining personal information in a manner which persons affected can neither fully appreciate nor control. The extent of protection of the right to informational self-determination is not restricted to information which by its very nature is sensitive and for this reason alone is constitutionally protected. In view of the possibilities of processing and combining, there is no item of personal data which is in itself, that is, regardless of the context of its use, insignificant. In particular, the protection of informational self-determination also includes personal information on the procedure by which telecommunications services are provided. 123. Provisions which give authority for government authorities to deal with personal data as a rule create a number of encroachments which build on each other. In this respect, a distinction must in particular be made between the collection, storage and use of data. In legislating for data exchange for the purpose of the performance of government duties, however, a distinction must also be made between data transfer by the party supplying the information and data retrieval by the agency seeking the information. A data exchange takes place through the encroachments of retrieval and transfer, which correspond to each other and each of which requires an independent legal basis. Figuratively speaking, the legislature must open not only the door for the transmission of data, but also the door for their retrieval. It is only both legal bases together, which must operate together like a double door, which give authority to exchange personal data. This does not exclude – subject to the system of competencies and the requirements of clear drafting – the possibility of both legal bases being contained in one provision. 124. b) The challenged provisions encroach upon the complainants’ fundamental right to informational self-determination. Firstly, there are encroachments upon the duty of collection and storage of [section 111 of the Telecommunications Act]. There are independent further encroachments upon fundamental rights by the duty of service providers laid down in [section 112(1) of the Telecommunications Act] to make the data available as customer databases which can be accessed in an automated procedure and by the authority of the Federal Network Agency to retrieve these data and to transmit them to particular authorities (see [section 112(4) of the Telecommunications Act]). Accordingly, [section 113(1), sentences 1 and 2, of the Telecommunications Act] create independent encroachments upon fundamental rights by imposing on the telecommunications service providers a duty to provide information on demand with regard to the data stored by themselves. 125. Finally, [sections 112 and 113 of the Telecommunications Act] are subject to prior retrieval of the data by the authorities entitled to retrieve, in the form of a request ([sections 112(1), 112(2) and 112(4) of the Telecommunications Act]) or a demand ([section 113(1) of the Telecommunications Act]); this constitutes an independent encroachment which must be distinguished from the foregoing. But under the legislature’s legislative concept, this also requires a further legal basis, which must be contained in federal or Land legislation, depending on the area involved. The provisions of [sections 112 and 113 of the Telecommunications Act] – corresponding to the distinction between collection and transmission in the legislative typology of the data protection Acts – are to be understood solely as the legal basis for the transmission. They presuppose that the authorities entitled to receive information have independent powers of collection ...” 15. In connection with section 111 of the Telecommunications Act the Federal Constitutional Court held that the obligation to maintain a database for subscriber information pursued the legitimate aim of, in particular, criminal prosecution. Even though the database constituted a precautionary collection and storage of a great range of data and criminal offenders would still be able to circumvent the provision by using telecommunications services anonymously, under false names or with mobile-telephone cards acquired from third parties, the interference with the right to informational self-determination was ultimately justified owing to the relatively restricted nature of the information stored. 16. Concerning proportionality, the Federal Constitutional Court stated, inter alia : “136. [Section 111 of the Telecommunications Act] does not violate the requirements of proportionality in the narrow sense. Even if the provision orders a precautionary collection and storage, without occasion, of a great range of telecommunications data, in view of the relatively restricted information content of the collected data this is an encroachment of limited weight. 137. However, the encroachment is non-trivial. It has weight in so far as [section 111 of the Telecommunications Act] makes it possible to attribute telecommunications numbers and subscribers almost completely for all telecommunications services and for this purpose individualising data such as address, date of birth and date when the contract commences are recorded and kept available by the government. The data form a general basis for information and fulfil the function of a telecommunications number register. As a rule, they make it possible to obtain all the telecommunication numbers of any person; conversely, virtually every telecommunications event for which a telecommunications number is determined may also be attributed to a connection and thus to a subscriber. As data which relate to the fundamental elements of telecommunications events they are therefore associated with particularly protected information relationships whose confidentiality is essential for a free order. In addition, the corresponding data are collected and stored without cause by way of precaution in order to make them available for the performance of government duties. 138. Nevertheless, the encroachment constituted by this is not of very great weight. In particular, the fact that the data are collected by way of precaution does not give the procedure a very great weight. For even if [section 111 of the Telecommunications Act] has a great range, the encroachment is restricted in substance to narrowly restricted data which in themselves give no evidence as to the specific activities of individuals and whose use the legislature has restricted to purposes defined in more detail. In such cases, even a precautionary storage is not automatically a particularly serious encroachment for the mere reason that it is carried out without occasion. Admittedly, the precautionary storage of data must always remain an exception to the rule and needs to be justified. But it is not excluded from the outset that precautionary data collections may be justified as the basis of the performance of a variety of government duties, such as are currently familiar in the form of the register of residents or, in the field of motor vehicles, in the form of the Central Vehicle Register ... and the Central Register of Driving Licences ... 139. The data covered by [section 111 of the Telecommunications Act] have limited probative value. They merely make it possible for telecommunications numbers to be individually attributed to the respective subscribers and thus to those numbers’ potential (and typical) users. These data contain no more detailed private information. In a fundamentally different way than in the case of precautionary storage of all telecommunications traffic data, neither do these data as such contain highly personal information, nor is it possible to use them to create personality profiles or track users’ movements. ... 140. Nor does a particular weight of the encroachment result from the fact that the data of [section 111 of the Telecommunications Act], taken in context, permit individual telecommunications events known to the authorities to be attributed and thus in certain circumstances make it possible to obtain individualised knowledge of their circumstances or their content. For in this way all that is made possible from the outset is the investigation of individual events where required by a specific case. In these cases, the authority already knows the circumstances or the content of the telecommunications event which is to be individualised with the data of [section 111 of the Telecommunications Act], whether because the authority has found them by investigation within its own competence – for example on the basis of § 100g of the Code of Criminal Procedure ... – involving encroachment upon the secrecy of telecommunications, whether because it has learnt of them through its own observations or from third-party information without such an encroachment. In the same way, conversely, no particular weight of the encroachment results from the fact that a retrieval of telecommunications numbers may be followed by further measures which in certain circumstances may entail serious encroachments, including encroachments upon the secrecy of telecommunications. For such further encroachments are only permissible under independent legal bases, which must take account of the weight of the encroachment in question. 141. The possibility of attribution of the data collected in [section 111 of the Telecommunications Act] serves the effective performance of the duties of the authorities defined in more detail in the provisions on use. It is constitutionally justified by the fact that the State may have a legitimate interest in successfully investigating particular telecommunications events if occasion arises, and this interest in the performance of particular tasks may have considerable weight, in individual cases even pre-eminent weight. It may not be cited in opposition to this that direct communication without means of telecommunications has no comparable encroachments. For the situation in that case is different. Because direct communication does not resort to technical means of communication which make it possible, without public observation, to interact over any distance in real time, it has no comparable basis, nor is there a comparable necessity for such a register. The traditional powers of investigation, for example the examination of witnesses or the seizure of documents, are more useful for clarification here than they are with regard to communication by means of electronic services. However, it is correct that even the possibilities of the modern means of telecommunications provide no justification for registering, if possible, all activities of citizens by way of precaution and making them basically reconstructible in this way. But there is no question of this when a register of telecommunications numbers is established, even when account is taken of the interaction with other available data.” 17. With regard to section 112 of the Telecommunications Act, the Federal Constitutional Court clarified (paragraph 144) that this provision “governs the use of the data stored under [section 111 of the Telecommunications Act] in the form of an automated information procedure in which the Federal Network Agency [ Bundesnetzagentur ] is to transmit the data on request to particular authorities named in [section 112(2) of the Telecommunications Act]. The provision is the legal basis only for the duty to make the data available as customer databases, for access to and transmission of these data, but not also for the retrieval in the form of a request from the authorities entitled to receive information.” However, according to the court, a general entitlement to collect data could be sufficient for a request by the entitled authorities. In this connection the court used the analogy of a double door (see paragraph 123, cited in paragraph 14 above), stating that, while section 112 of the Telecommunications Act opened the door for transmission, it did not open the door for data collection by the specialised authorities. 18. Nonetheless, the Federal Constitutional Court held that – for several reasons – the interference provided for by section 112 of the Telecommunications Act was considerably weighty: “156. However, the provision acquires a considerable weight of encroachment from the fact that [section 111 of the Telecommunications Act] very much simplifies data retrievals. The procedure, which is centrally organised and automated, permits an access which largely removes practical difficulties of data collection and makes the data of the persons affected available without delay or attrition in the form of requirements of review. In addition, the information is given without telecommunications enterprises or other third parties becoming aware of this. Admittedly, the fact that the issuing of information is not noticed by the telecommunications enterprise ensures discretion for the persons whose data are involved; but at the same time, this means that the encroachments lack the effects of restraint and control which are entailed by observation by third parties. In addition, a legal review by the Federal Network Agency, which transmits the data, is only made if there is a particular occasion for this (see [section 112(4), sentence 2, of the Telecommunications Act ]). Since the retrieving authority does not have to give reasons for its request, however, such an occasion will scarcely ever arise. 157. Weight also attaches to the fact that the legislature has drafted the purposes of the data very broadly. The data may generally be transmitted to the authorities named in [section 112(2) of the Telecommunications Act] for the performance of their statutory duties. This is restricted only for the law enforcement authorities under [section 112(2), no. 2, of the Telecommunications Act], and under [section 112(2), nos. 3 and 7, of that Act] for the customs authorities named there. But it is important in this connection that data may be issued to the former, under [section 112 of the Telecommunications Act], only for purposes of warding off danger, which excludes mere risk precaution. In connection with the respective duties of the authorities entitled to retrieve, the information duties of the Federal Network Agency are also not very restricted. In particular, there are no strict encroachment thresholds in the statute; instead, the duty of information is opened in full to the respective competence of the authorities. However, the fact that information may only be given in so far as it is necessary for the performance of the duty does create an objectively limiting factor. This ensures that retrievals are not casually permitted for mere guidance in advance but only when information actually needed for the performance of duties cannot be obtained more easily but equally effectively in another way. ... 163. However, [section 112 of the Telecommunications Act] does not in fact restrict information to retrievals which are legitimised by specific legal bases relating to the automated information procedure, but also accepts requests which are based on simple powers of data collection. As a result, there is no requirement on the non ‑ constitutional level for the entitled authorities to be expressly specified over and above [section 112(2) of the Telecommunications Act] and for further conditions for data retrieval which are to be observed. ...” 19. The Federal Constitutional Court nevertheless concluded that section 112 of the Telecommunications Act was proportionate: “155. [Section 112 of the Telecommunications Act] satisfies the requirements of the principle of proportionality. The provision serves to increase the effectiveness of the performance of their duties by the authorities named in [section 112(2) of the Telecommunications Act] and it is suitable and necessary for this. It is also proportionate in the narrow sense. ... 158. Despite the fact that the weight of the encroachment is considerable, the provision is proportionate. The authorities entitled to retrieve are at least limited in number. The purposes for which they are given information under [section 112(2) of the Telecommunications Act] are central duties relating to the guarantee of security. In view of the increasing importance of electronic means of communication and the concomitant changes of human communication behaviour in all areas of life, the authorities here depend to a great extent on a possibility which is as uncomplicated as possible of being able to attribute telecommunications numbers individually. In this respect, it is a decision of the legislature which is constitutionally unobjectionable if it permits the transmission of these data in order to investigate criminal offences and dangers, to observe developments which endanger the Constitution in order for the government and the public to be informed or to give assistance in emergencies. Because such investigations must often be carried out rapidly and without the knowledge of those affected, an automated information procedure is of particular importance for them. Increasing the effectiveness of the work of the courts is also a concern whose weight is supported by such a provision. 159. The limited probative value of the data is of central importance for the weighing of interests: They provide information solely on the attribution of individual telecommunications numbers to their subscriber. Even if, in specific collection contexts, sensitive information may result from them, the information content of this information as such remains limited and in addition depends on further investigations whose lawfulness is to be evaluated under different provisions. ... 163. ... Since the subject here is the transmission of data by an authority and the substantive conditions for this, including those with regard to the persons whose data are involved, are laid down definitively and with sufficient clarity [in section 112 of the Telecommunications Act], then, taking account of the limited weight of encroachment of the provision, this is compatible with the principle of proportionality and corresponds to the structure of the provisions on the automated retrieval of vehicle and vehicle owner data from the vehicle register ... and the provision on data transmission in the law relating to the registration of residents .... Admittedly, this does not change the responsibility of the legislature – and in this connection, where applicable, of the Länder – for the constitutional formulation of the data collection provisions, which are not themselves the subject of the present proceedings. ...” In addition, the court emphasised the responsibility of the public authorities to apply these provisions in such a way that specific account was taken of the requirements of section 112(1) and (2) of the Telecommunications Act and in particular of the requirement that collection had to be necessary even in an individual case, and of the further requirements of the principle of proportionality. 20. In respect of section 113 of the Telecommunications Act, the Constitutional Court held that the provision could only be understood as a release provision and that an additional legal basis for the retrieval of data by the authorities was required. The court also noted that there was no limitation regarding the requesting authority – except in relation to the authorities’ duties – and that the purposes for data retrieval were stated in broad terms. It concluded, nonetheless, that, in view of the information from the data in question, which in itself was limited, and their great importance for an effective performance of duties, the reach of this provision was constitutionally unobjectionable. 21. The Federal Constitutional Court stated, inter alia : “176. However, [section 113(1), sentence 1, of the Telecommunications Act] opens the manual information procedure very wide. It permits information for the purpose of warding off dangers, prosecuting criminal offences or regulatory offences and performing intelligence duties. In this connection, the provision is also given no specific thresholds of encroachment which define its scope in more detail. Instead, it always permits information in the individual case if this is necessary to perform the above duties. 177. However, in view of the information content of the data in question, which in itself is limited, and their great importance for an effective performance of duties, the reach of this provision is constitutionally unobjectionable. In this connection, account must be taken of the fact that it by no means permits information to be given indiscriminately. On the contrary, there is a restrictive effect in the fact that information under [section 113(1), sentence 1, of the Telecommunications Act is] called for in the individual case and must be necessary. In relation to warding off danger, which the legislature has expressly not defined as including risk precaution, a prudent interpretation reveals that a ‘concrete danger’ within the meaning of the ‘general clauses’ [ Generalklauseln ] of police law is a requirement for such information. Admittedly, this threshold is low and also admits the suspicion of dangers. Equally, it does not in advance restrict information to persons endangering public security within the meaning of general police and regulatory law. However, this does not relieve it from restriction to such an extent as to be disproportionate in view of its limited weight of encroachment. In particular it does not enable information as a general means for lawful administrative enforcement, but in the individual case it requires the duty in question to have a security-law character. It is true that in regard to the intelligence services, which in general act in advance, irrespective of concrete dangers, there is no comparable threshold of encroachment. But this is justified by the restricted duties of the intelligence services, which are not directly aimed at police measures, but only at a duty to provide reports to the politically responsible State bodies or to the public. Apart from this, it follows here too from the requirement of necessity in the individual case that information under [section 113(1), sentence 1, of the Telecommunications Act] must be required in order to successfully investigate a particular action or group which requires observation by the security authorities. In so far as information relates to the prosecution of criminal offences and regulatory offences, the requirement of necessity in an individual case means that there must at least be an initial suspicion. 178. Taken together, these thresholds are not high, but they are constitutionally acceptable. In this connection, it must be taken into account in comparison to [section 112 of the Telecommunications Act] that a manual information procedure entails certain procedural efforts on the part of the retrieving authority, which is likely to encourage the authority to obtain the information only where it is sufficiently needed.” 22. Regarding legal remedies against information requests under sections 112 and 113 of the Telecommunications Act, the Federal Constitutional Court held: “186. ... Nor are there objections to the fact that in view of the slightness of the encroachment no specific proceedings of legal redress are intended against information under [sections 112 and 113 of the Telecommunications Act]. Legal redress in this connection may be sought under general rules – in particular together with legal redress proceedings against the final decisions of the authorities. 187. The requirements of the principle of proportionality do not give rise to a blanket requirement for the persons affected by the information to be notified of the information under [sections 112 and 113 of the Telecommunications Act], ...” 23. In its decision the Federal Constitutional Court established that 26.6 million data sets – either subscriber identity or telephone number – had been queried in 2008 under section 112 of the Telecommunications Act. That figure did not differentiate between data sets relating to pay-as-you-go mobile-telephone users and other customers. | In accordance with 2004 amendments to the German Telecommunications Act companies had to collect and store the personal details of all their customers, including users of pre-paid SIM cards, which had not previously been required. The applicants, civil liberties activists and critics of State surveillance, were users of such cards and therefore had to register their personal details, such as their telephone numbers, date of birth, and their name and address, with their service providers. They complained about the storage of their personal data as users of pre-paid SIM cards. |
99 | Taking of children into care | I. THE CIRCUMSTANCES OF THE CASE 4. The first applicant was born in 1987. The second applicant, L., the biological son of the first applicant was born on 10 December 2008. 5. By a decision of the K. Welfare Centre (“the Centre”) of 19 December 2008 L. was placed in a foster family in another town, on the ground that the first applicant was unemployed and had no income, was supported by her mother, attended a special needs programme in school and lived with her mother and a mentally ill brother in an old and dilapidated house without heating. 6. The first applicant consented to having L. placed in a foster family. A. Proceedings related to divesting the first applicant of her parental rights 7. On an unspecified date the Centre lodged a request with the K. Municipal Court, seeking that the first applicant be divested of her parental rights in respect of L. 8. The first applicant was unrepresented in those proceedings. 9. On 10 May 2010 the K. Municipal Court divested the first applicant of her parental rights in respect of her son L., on the ground that the first applicant had a mild mental disability and was not able to provide proper care to L. The relevant part of the decision reads: “On 28 April and 4 June 2009 a social worker visited the family of A.K. and established that the home was untidy and the respondent looked unkept, was wearing dirty clothes, had greasy hair and smelled unpleasant as a result of a lack of personal hygiene. When asked by the social worker when she had last taken a bath, she shrugged and looked at her mother. The respondent was advised to maintain good personal hygiene in the interest of transferring good habits to her child. Since the living premises ... were equally untidy during the second visit she was told that proceedings for divesting her of parental rights would be instituted. At a meeting held on 10 February 2010 the Centre ... concluded that the respondent suffered from a mild mental disability which was not being treated by a psychiatrist; that she lived in poor conditions in untidy premises and did not maintain her personal hygiene. Upon the birth of her son, L., she had said that she was not capable of caring for him, and L. was placed in a foster family. She had visited him twice in the first year and showed no interest in the child. Against this background the team of experts concluded that the respondent had abandoned the child because in the year during which the child had been placed in foster care she had not created an appropriate home environment for the child ... The mother of the child opposed the request and asked that the child be given back to her so that she could try to care for him. In order to establish the relevant facts this court ordered a psychiatric examination of the mother. The psychiatrist ... stressed that the respondent is a person with a mild mental disability ... Since childhood she has been behind in her mental development and lived in a sheltered environment. At school she was enrolled in a special needs programme and with some effort completed training to be a florist, but has never worked. ... ongoing psychiatric treatment is needed. During the examination the psychiatrist conducted a short interview with the respondent, who correctly stated her date of birth, confirmed that she had gone to school, that she had never been employed, and that she did some chores at home without specifying what. When asked whether she could cook, she answered that she could only prepare milk. When asked about the care of the child she said that she knew that a child had to be changed and fed, but could not explain how. She does not take any medicine and is not seeing a psychiatrist. The expert ... stresses that A.K. is intellectually under developed, that is to say, she has a mild mental disability, and has an aggravated form of scoliosis. On the basis of her mental and physical condition the respondent is not capable of caring for her son ... ... This court accepts the opinion of the expert ... and considers that the mother ... is not able to care for L. Owing to her health – advanced scoliosis – she is not able to pick the child up, hold him in her arms, run after him, or prevent him from hurting himself, because the scoliosis prevents her from moving quickly. In addition, at the hearings held before this court, [the court] established that the mother spoke with difficulty and had a limited vocabulary, which indicated a risk that, if entrusted to his mother’s care, the child would not learn to speak or would learn to do so with a delay. It is questionable whether he would be able to start his schooling on time, because he would surely be behind in his development in comparison with other children of the same age; this court cannot allow that to happen, because the child has the right to a life of good quality in orderly surroundings with all the necessary care, and, above all, in sanitary conditions, none of which he would have with his mother. In her reply the respondent stated that she wished to try to care for her son L., but this court, in order to protect the well being of the child, cannot allow such an experiment. ...” This decision was served on the first applicant on 17 May 2010. 10. After a chance meeting with her former teacher with whom she discussed her family issues, the first applicant applied for legal aid in order to lodge an appeal. However, the decision granting her the right to a legal aid lawyer was adopted only after the time-limit for lodging the appeal had already expired. B. Proceedings related to restoring the first applicant’s parental rights 11. On 28 October 2010 the first applicant’s legal aid lawyer lodged a request with the K. Municipal Court, asking it to restore her parental rights in respect of L. The first applicant alleged that her living conditions had significantly changed after the decision divesting her of her parental rights had been adopted. Thus, her mentally ill brother no longer lived in the same household but had been placed in an institution; the house had been partly renovated and heating had been installed. 12. She also argued that a mild mental disability should not be a reason for depriving her of her parental rights and that the allegations that she did not know how to prepare meals or care for a child had not been true. Furthermore, no expert opinion had established that she had a speech problem and had limited vocabulary or a limited ability to reason which would create a risk that the child, if entrusted to her care, would not learn how to speak. 13. Also, the allegations by the Centre that she had visited her son only twice during his first year of life had been untrue, since she had visited him once a month until, after the decision divesting her of her parental rights had become final, the same Centre had ceased to pay her monthly allowance and she had no longer had the means to pay for the trip to visit L. 14. On 10 December 2010 the first applicant informed the Centre that in a telephone conversation with L.’s guardian, on 7 December 2010 she had learned that L. had been put up for adoption. She asked the Centre to provide her with all the relevant information concerning the adoption of her son L. 15. On 14 December 2010 the Centre replied that L. had been adopted by a final decision of 15 October 2010 and that no consent for adoption was needed from a parent who had been divested of parental rights, and that such a parent could not be a party to adoption proceedings. No further information could be given to her since the data concerning the adoption were confidential. 16. On 28 January 2011 the K. Municipal Court dismissed the first applicant’s request to restore her parental rights on the ground that L. had meanwhile been adopted. | This case concerned a mother with mild mental disability who had been divested of her parental rights. Her son had been put up for adoption without her knowledge, consent or participation in the adoption proceedings. |
666 | Private persons | 2. The applicant was born in 1948 and lives in Čierne Pole. She was represented by Mr P. Kerecman, a lawyer practising in Košice. 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’s late son, who had been a Roman Catholic priest, had been convicted, in 1999, of sexual abuse and threatening the moral education of young people (on account of having attempted to have non ‑ consensual oral sex with a minor boy) and, in 2002, of disorderly conduct (on account of having had consensual oral sex with an adult man in a public place). Those criminal convictions had become spent ( zahladenie ) in 2001 and 2003 respectively, because the applicant’s son had complied with the conditions of his conditional sentence subject to a probationary period. He died in 2006. 6. Two years after the applicant’s son’s death, between March and May 2008, three tabloid newspapers published articles about his conviction for sexual abuse and a possible link between it and his supposed suicide. The articles were entitled “Priest confessed to abuse of minor boys. Secret of priest’s suicide”, “Priest abused Roma boys. He confessed before his suicide”, and “ Protected priests. The Church provided a guarantee to get a paedophile priest out of prison”. The articles asserted that before his supposed suicide the applicant’s son had confessed to his acts and his bisexual orientation; that the bishop to whom he was subordinate had been informed of the criminal charges, following which the Church had offered a guarantee of his good behaviour; and that by virtue of that kind of guarantee, the applicant’s son had either been released, not put in detention, or not convicted. The articles, one of which was accompanied by pictures of the applicant’s son, mentioned his full name and many details of his private and intimate life, some of which related to the distant past, which were described in expressive terms and presented as stemming either from the criminal files or from the statements of people who had been approached by the journalists (including two of the applicant’s son’s victims, the above ‑ mentioned bishop, a former mayor and some of the applicant’s son’s former parishioners). 7. On 27 August 2008 the applicant instituted proceedings against the publishers of the three newspapers, seeking post-mortem protection of her late son’s personal integrity on the basis of Article 15 of the Civil Code, as well as protection of her own personal integrity on the basis of Article 11 of the Civil Code. She argued that although her son had confessed to the offence of disorderly conduct, he had never done so with regard to sexual abuse; that one of his purported victims had retracted his accusations of abuse; and that both convictions had become spent. She further asserted that she was not aware of any guarantee offered in the proceedings against her son, that no such information appeared from the relevant decisions and that her son had died as a result of drug intoxication and medical negligence. In the applicant’s view, the articles contained many false and misleading allegations which did not correspond to the criminal courts’ findings, and contained disproportionate value judgments characterising her son as a criminal and his acts as “disgusting paedophile orgies”, the aim of which was to cause a sensation and increase the newspapers’ sale figures. The applicant claimed that those allegations and judgments interfered with both her late son’s and her own privacy rights; moreover, since their publication she had faced adverse reactions and questions from her neighbours and people who had known her son, which significantly affected her period of mourning and contributed to a deterioration in her health. 8. In the framework of the above-mentioned proceedings, the Michalovce District Court obtained the observations of all of the parties and heard the applicant, her relatives, the defendants’ representatives and several witnesses. The relevant records show the following information. 9. The mayor whose quotes were referred to in one of the articles denied having spoken to any newspapers. 10. The authors of the articles mainly stated that they could not remember concrete sources or details, and that they had essentially based the articles on the Internet and other media, on the criminal file, and their personal communication with the bishop and unidentified people living in the parishes concerned, whose statements were deemed to be an expression of their opinions needing no verification. The journalist M.K. referred to a very good source who had provided him with a written document, and to a police record concerning the questioning of the applicant’s son; he claimed to have verified the authenticity of the written document but did not remember any details. M.K. asserted that he had also contacted police spokespersons and had sent an email to the bishop’s office, but he was not sure whether he had saved their exchange (it is not clear from the file whether M.K. complied with the District Court’s request to submit a copy of that exchange). According to the journalist, the story was unusual and interesting, and he had wanted to inform people that even in such a case, the Church had protected the convicted priest and had not removed him; he had wanted to point out in some way the situation within the Church. On the other hand, the journalist M.B. asserted that she had not wanted to discuss or assess the situation within the Church but to provide a forum for people’s reactions to the serious facts concerned. She stated that all the facts that she had mentioned in the article would have been confirmed by the bishop. As to the question of the basis for the value judgment alleging that the applicant’s son had committed suicide, probably under the weight of a bad conscience, the journalist A.H. replied that she did not remember whether she had had any support for that information and, if she did, where it had come from. 11. According to a report by the bishop’s office, requested by the court and dated 4 October 2011, that office had not received any questions concerning the applicant’s son from the journalist M.K. or from any other newspapers. 12. By a judgment of 2 May 2012, the District Court ordered each of the defendants to publish a formal apology to the applicant for having published untrue allegations about her late son, but dismissed her financial claims. The court stated that the applicant’s son’s criminal convictions were indisputable and that although they had become spent, that legal fiction could not be considered absolute since there were situations where those convictions could still be taken into account. The court further considered that the applicant’s son’s criminal prosecution had been of public interest and that the journalists had been entitled to cover the facts that undeniably appeared from the criminal files. However, the applicant’s application had to be partially granted because the articles contained untrue allegations, concerning, inter alia, the guarantee offered by the Church, which had interfered with the applicant’s late son’s personal integrity. Those allegations were mainly based on a record of the applicant’s son’s statement before an unidentified authority, of which only a partial copy had been submitted and which had not proved to be authentic since it did not correspond to any record from the criminal proceedings; the allegations were also based on the statements of other persons interviewed by the journalists, for the dissemination of which the defendants bore objective responsibility. On the other hand, it had not been objectively proven that the applicant’s own integrity or dignity had been affected, given that she had not lived with her son, who had worked a long way from where she lived. Even if the applicant’s son had been entitled to non-pecuniary damages, which was not the case here owing to his reprehensible behaviour, that right was of a personal character and could not be transferred to the applicant, hence the dismissal of that part of her action. 13. The applicant appealed, mainly challenging the decision not to order an apology for the publication of the pictures of her late son or any non ‑ pecuniary damages. An appeal was also lodged by the defendants. 14. On 17 September 2013 the Košice Regional Court quashed the District Court’s judgment, on the ground that the decision ordering the defendants to publish an apology to the applicant was not supported by the evidence. In its view, the District Court should have assessed whether the facts described in the articles reflected what had really happened, instead of examining the authenticity of the copy of the record of the applicant’s late son’s statement. Therefore, the District Court’s judgment had lacked comprehensive reasoning. 15. By a new judgment of 24 February 2014 the District Court dismissed the applicant’s action and ordered her to pay the costs incurred by the defendants. It observed that, as a parish priest, the applicant’s son could not be treated as an ordinary person whose personal integrity required higher protection, but rather as a public figure expected to be more tolerant to criticism. As the criminal prosecution of the applicant’s son had been of public interest, and with regard to cases of sexual abuse by clergymen that had occurred in the past and the attitude of the Roman Catholic Church to them, the court found that the journalists had been entitled to cover the facts that undeniably appeared from the criminal files, and they had been entitled to publish the applicant’s late son’s picture in accordance with Article 12 § 3 of the Civil Code. While it was true that the articles had also relied on other sources, the court considered that, seen in the light of the applicant’s son’s conviction, those sources could be deemed credible. In particular, as to the copy of the record of the applicant’s son’s statement submitted by one of the defendants, the court considered that the reason why that record did not appear in the criminal files was that it had probably been made before the opening of the prosecution of the applicant’s son. In any event, the facts described in that record were not considered to be fabricated because they corresponded to the facts on the basis of which the applicant’s son had been convicted. The court further noted that the bishop’s office had denied receiving questions from any newspapers, and it had not been proven that the bishop had offered a guarantee on behalf of the applicant’s son; nevertheless, it appeared from the attitude of the bishop’s office that they had attempted to help the applicant’s son as much as possible. 16. In a subsequent appeal, the applicant mainly challenged the District Court’s failure to duly respond to all her arguments as well its erroneous findings reached without the submission of any new evidence. In her view, the court had also failed to distinguish between allegations of fact and value judgments and to carry out a proportionality test. 17. On 3 June 2015 the Regional Court upheld the judgment of the District Court, except for the decision on costs, which was quashed and remitted back to the District Court (the final decision on that issue was delivered, in the applicant’s favour, on 17 May 2017). It considered that the dismissal of the applicant’s action was based on correct factual and legal findings, and subscribed to the District Court’s opinion that the facts described in the articles, including those emanating from sources other than the applicant’s son’s criminal convictions, could be considered credible. 18. The applicant challenged the Regional Court’s judgment by way of a constitutional complaint, alleging a violation of her rights under Articles 6 and 8 of the Convention, recapitulating her previous arguments and referring to the relevant criteria established by the Court’s case-law. She further claimed that the Regional Court had failed to give a duly reasoned decision and had reached arbitrary conclusions which were not supported by credible evidence. 19. On 8 February 2017 the Constitutional Court declared the complaint inadmissible as manifestly-ill founded. It found that the Regional Court had duly dealt with the applicant’s arguments and that its findings were sufficiently reasoned and acceptable from a constitutional point of view. It further reiterated that, pursuant to its established case-law, a general court could not bear “secondary liability” for a violation of fundamental rights and freedoms of a substantive nature unless there had been a violation of procedural rules. As no violation of any procedural rule had been established, the whole constitutional complaint had to be dismissed as manifestly ill-founded. | This case concerned the dismissal of an action instituted by the applicant against tabloids, which had published unverified tawdry statements on, and pictures of, her son, a priest who had been convicted of sexual offences, years after his death. |
252 | (2) A State may take measures derogating from its Convention obligations only to the extent strictly required by the situation | I. Circumstances of the case A. The applicant 7. The applicant, Mr Zeki Aksoy, was a Turkish citizen who, at the time of the events in question, lived in Mardin, Kiziltepe, in South-East Turkey, where he was a metal worker. He was born in 1963 and was shot and killed on 16 April 1994. Since then, his father has indicated that he wishes to pursue the case (see paragraph 3 above). B. The situation in the South-East of Turkey 8. Since approximately 1985, serious disturbances have raged in the South-East of Turkey between the security forces and the members of the PKK (Workers ’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces. 9. At the time of the Court ’ s consideration of the case, ten of the eleven provinces of south-eastern Turkey had since 1987 been subjected to emergency rule. C. The detention of the applicant 10. The facts in the case are in dispute. 11. According to the applicant, he was taken into custody on 24 November 1992, between 11 p.m. and midnight. Approximately twenty policemen had come to his home, accompanied by a detainee called Metin who, allegedly, had identified the applicant as a member of the PKK, although Mr Aksoy told the police that he did not know Metin. 12. The Government submitted that the applicant was arrested and taken into custody on 26 November 1992 at around 8.30 a.m., together with thirteen others, on suspicion of aiding and abetting PKK terrorists, being a member of the Kiziltepe branch of the PKK and distributing PKK tracts. 13. The applicant stated that he was taken to Kiziltepe Security Headquarters. After one night, he was transferred to Mardin Antiterrorist Headquarters. He was allegedly detained, with two others, in a cell measuring approximately 1.5 x 3 metres, with one bed and a blanket, but no pillow. He was provided with two meals a day. 14. He was interrogated about whether he knew Metin (the man who had identified him). He claimed to have been told: "If you don ’ t know him now, you will know him under torture." According to the applicant, on the second day of his detention he was stripped naked, his hands were tied behind his back and he was strung up by his arms in the form of torture known as "Palestinian hanging". While he was hanging, the police connected electrodes to his genitals and threw water over him while they electrocuted him. He was kept blindfolded during this torture, which continued for approximately thirty-five minutes. During the next two days, he was allegedly beaten repeatedly at intervals of two hours or half an hour, without being suspended. The torture continued for four days, the first two being very intensive. 15. He claimed that, as a result of the torture, he lost the movement of his arms and hands. His interrogators ordered him to make movements to restore the control of his hands. He asked to see a doctor, but was refused permission. 16. On 8 December 1992 the applicant was seen by a doctor in the medical service of the sub-prefecture. A medical report was prepared, stating in a single sentence that the applicant bore no traces of blows or violence. According to Mr Aksoy, the doctor asked how his arms had been injured and was told by a police officer that he had had an accident. The doctor then commented, mockingly, that everyone who came there seemed to have an accident. 17. The Government submitted that there were fundamental doubts as to whether the applicant had been ill-treated while in police custody. 18. On 10 December 1992, immediately before his release, Mr Aksoy was brought before the Mardin public prosecutor. According to the Government, he was able to sign a statement denying any involvement with the PKK and made no complaint about having been tortured. The applicant, however, submitted that he was shown a statement for signature, but said that its contents were untrue. The prosecutor insisted he sign it but Mr Aksoy told him that he could not because he could not move his hands. D. Events on the applicant ’ s release 19. Mr Aksoy was released on 10 December 1992. He was admitted to Dicle University Medical Faculty Hospital on 15 December 1992, where he was diagnosed as suffering from bilateral radial paralysis (that is, paralysis of both arms caused by nerve damage in the upper arms). He told the doctor who treated him that he had been in custody and strung up with his arms tied behind his back. He remained at the hospital until 31 December 1992 when, according to the Government, he left without having been properly discharged, taking his medical file with him. 20. On 21 December 1992, the public prosecutor decided that there were no grounds to institute criminal proceedings against the applicant, although eleven of the others detained with him were charged. 21. No criminal or civil proceedings have been brought in the Turkish courts in relation to the alleged ill-treatment of the applicant. E. The death of the applicant 22. Mr Aksoy was shot dead on 16 April 1994. According to his representatives, he had been threatened with death in order to make him withdraw his application to the Commission, the last threat being made by telephone on 14 April 1994, and his murder was a direct result of his persisting with the application. The Government, however, submitted that his killing was a settling of scores between quarrelling PKK factions. A suspect, allegedly a member of the PKK, has been charged with the murder. F. The Commission ’ s findings of fact 23. Delegates of the Commission heard evidence from witnesses in the case in Diyarbakir between 13 and 14 March 1995 and in Ankara between 12 and 14 April 1995, in the presence of representatives from both sides who were able to cross-examine the witnesses. In addition, the Commission heard oral submissions on admissibility and the merits at hearings in Strasbourg on 18 October 1994 and 3 July 1995. After evaluating the oral and documentary evidence, the Commission came to the following conclusions with regard to the facts: a) It was not possible to make a definite finding as to the date on which Mr Aksoy was arrested, although this clearly took place no later than 26 November 1992. He was released on 10 December 1992, therefore he was detained for at least fourteen days. b) On 15 December 1992 he was admitted to hospital and was diagnosed with bilateral radial paralysis. He left hospital on 31 December 1992 on his own initiative, without having been properly discharged. c) There was no evidence that he had suffered any disability prior to his arrest, nor any evidence of any untoward incident during the five days between his release from police custody and his admission to hospital. d) The Commission noted that the medical evidence indicated that the applicant ’ s injuries could have had various causes, but one of these could have been the trauma suffered by a person who had been strung up by his arms. Moreover, radial paralysis affecting both arms was apparently not a common condition, although it was consistent with the form of ill-treatment known as "Palestinian hanging". e) The delegates heard evidence from one of the policemen who had interrogated Mr Aksoy and from the public prosecutor who saw him prior to his release; both claimed that it was inconceivable that he could have been ill-treated in any way. The Commission found this evidence unconvincing, since it gave the impression that the two public officers were not prepared even to consider the possibility of ill-treatment occurring at the hands of the police. f) The Government offered no alternative explanation for Mr Aksoy ’ s injuries. g) There was insufficient evidence to enable any conclusions to be drawn with regard to the applicant ’ s other allegations of ill-treatment by electric shocks and beatings. However, it did seem clear that he had been detained in a small cell with two other people, all of whom had had to share a single bed and blanket, and that he had been kept blindfolded during interrogation. | In the present case the applicant had been held for at least fourteen days without being brought before a judge or other judicial officer. The Turkish Government sought to justify this measure by the particular demands of police investigations in a vast region in the grips of a terrorist organisation receiving outside support. While not presenting any detailed arguments against the validity of the Turkish derogation as a whole, the applicant, for his part, cast doubt on the need, in south-eastern Turkey, to hold suspects in custody for fourteen days or more without any judicial supervision. In his view, the judges in that part of Turkey would not run any risk if they were able and obliged to review the lawfulness of detention at more frequent intervals. |
854 | Interception of communications, phone tapping and secret surveillance | I. THE CIRCUMSTANCES OF THE CASE 8. The facts of the case, as submitted by the parties, may be summarised as follows. 9. Between August 1995 and the applicant’s arrest on 21 January 1996, he was the target of surveillance by the police. Using a “clone” of the applicant’s pager, the police were able to intercept messages sent to him. The pager system used by the applicant and intercepted by the police operated as follows: The sender, whether in the United Kingdom or overseas, would telephone the pager bureau in the United Kingdom via the public telephone network. The pager operator would key the message into a computer and read it back to the sender to confirm its accuracy. The computer message was transmitted via the public telephone system to the pager terminal, from where it was relayed by radio to one of four regional base stations and thence, again by radio, simultaneously to the applicant’s and the police’s clone pagers, which displayed the message in text. 10. The applicant was arrested and charged with conspiracy to supply a controlled drug. The prosecution alleged that he had been one of the principal organisers of the importation to the United Kingdom from Amsterdam of over 22,000 ecstasy tablets worth approximately GBP 268,000. He was tried, along with a number of alleged co-conspirators, at Bristol Crown Court in September 1997. 11. Part of the prosecution case against the applicant consisted of the contemporaneous written notes of the pager messages which had been transcribed by the police. The applicant’s counsel submitted that these notes should not be admitted in evidence because the police had not had a warrant under section 2 of the Interception of Communications Act 1985 (“the 1985 Act”) for the interception of the pager messages. However, the trial judge ruled that, since the messages had been transmitted via a private system, the 1985 Act did not apply and no warrant had been necessary. 12. The applicant pleaded not guilty. He was convicted and sentenced to ten years’ imprisonment. 13. The applicant appealed against conviction and sentence. One of the grounds was the admission in evidence of the pager messages. The Court of Appeal, dismissing the appeal on 13 September 1998, upheld the trial judge’s ruling that the messages had been intercepted at the point of transmission on the private radio system, so that the 1985 Act did not apply and the messages were admissible despite having been intercepted without a warrant. | This case concerned in particular the interception by the police, as part of a covert surveillance operation, of messages sent to the applicant’s pager. |
682 | Disclosure of personal data | 2. The applicant company, a limited liability company registered in Vienna, was represented by Ms M. Windhager, a lawyer practising in Vienna. 3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The Background TO the case 5. The applicant is a limited liability company based in Vienna. It owns and publishes a daily newspaper published in print format ( Der Standard ), in digital format (as an “e-paper”) and in an online version ( derStandard.at ). The applicant company describes its work as being of a multi-media nature, and its editorial office ( Redaktion ) does not distinguish between the print and the digital medium. The online news portal run by the applicant company under derStandard.at (hereinafter “the portal”) carries articles assigned to it by the editorial office and discussion forums relating to those articles. At the end of each article, the applicant company invites registered users to post comments with a banner stating “Your opinion counts” and a field entitled “Your comment ...” that allows them to insert text. 6. In the course of the registration process (during which new users have to accept the applicant company’s general terms and conditions, see paragraph 7 below), each user is required to submit his or her name, surname and email address to the applicant company; moreover, he or she may, optionally, submit a postal address. Users are informed that their data will not be seen publicly. 7. The applicant company’s general terms and conditions state that its forums’ rules (the latest version of which can be found on the portal) must be complied with. Under the heading “Community guidelines” the applicant company reminds users that their comments are an essential and valuable part of the portal. It emphasises that the forums’ rules are to be respected and are taken into consideration during moderation, as the quality of discussions is of great concern to it. The portal is described as providing a platform for lively, interesting and inviting dialogue. Under a subheading entitled “quality features [ Qualitätsmerkmale ] of postings” the applicant company provides guidelines on how to write a comment. Under a subheading “forums’ rules” it reminds users that they are responsible for their own comments and that they may be held liable for them; moreover, it is indicated that the applicant company will only disclose user data if required to do so by law. Inter alia, personal attacks in the form of insults, threats or abuse, as well as defamatory statements or statements damaging to businesses, are not accepted. The applicant company reserves the right to delete posts that do not comply with the community guidelines. Offensive, discriminatory or hateful usernames are not tolerated. 8. Under a subheading “procedure for moderation” the applicant company informs its users that it has installed an automated keyword ‑ screening system. All user comments are screened for problematic content by this system before they are published on the portal. In the event that the system flags a problematic comment, the publication of that comment becomes subject to a manual ex ante review. 9. The automated screening system also takes other factors into account – in particular, the number of previous “hits” in respect of comments posted by the same user, or whether the comment was made by someone who has recently registered with the portal. Furthermore, all comments on material relating to particularly sensitive issues may have to undergo a manual review before publication. Discussion forums may be closed, if deemed necessary. 10. After publication, user comments are subject to an editorial review by the applicant company on a regular basis. 11. Moreover, the applicant company has implemented a “notice and take down” system by which other users can trigger a manual editorial review of published user comments by means of a “report” button. 12. According to the applicant company, its moderators review up to 6,000 user comments per day and requests for deletion are granted liberally. User data are disclosed, upon request and in accordance with the law, to third parties if it is sufficiently clear that the comment in question may have violated a person’s rights. comments published on the portalComments concerning K.S. and the FPK Comments concerning K.S. and the FPK Comments concerning K.S. and the FPK 13. On 19 March 2012 an article under the heading “[S.] Brothers take action against forum users” ( Gebrüder [S.] gehen gegen Foren-User vor ) was published on the portal. The article related, inter alia, to K.S., who was at that time a leader of Die Freiheitlichen in Kärnten (FPK), a right-wing regional political party that at the time of the events was represented in the Kärnten Regional Parliament and in the Regional Government in coalition with two other parties. The article quoted a remark made by K.S. describing people who attacked him in forums as “down-at-heel guys who sound off” ( Schmuddeltypen, die sich hier ausrotzen ). The article attracted more than 1,600 user comments. 14. On 22 March 2012 a reader with the username “Tango Korrupti2013” posted the following comment relating to that article: “Corrupt politician-assholes forget, [but] we don’t ELECTION DAY IS PAYDAY!!!!!” ( Korrupte Polit-Arschlöcher vergessen, wir nicht WAHLTAG IST ZAHLTAG!!!!! ) 15. On 23 March 2012 a reader with the username “rrrn” posted the following comment: “[It was] to be expected that FPOe/K, ... ...-opponents would get carried away. [That would] not have happened if those parties had been banned for their ongoing Nazi revival.” (War zu erwarten, dass FPOe/K, ... -Gegner ueber die Straenge schlagen. Waere nicht passiert, wenn diese Parteien verboten worden waeren wegen ihrer dauernden Nazi-wiederbelebung.) 16. On 16 April 2012, K.S. and the FPK requested the applicant company to disclose the name, address and email address (hereinafter “user data”, see paragraph 6 above) of the comments’ authors in order to be able to institute civil and criminal proceedings against them. 17. On 18 April 2012, the applicant company replied that they had deleted the comments but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings. Comments concerning H.K. 18. On 5 May 2013 an interview with H.K. under the heading “What you call uproar, I call effective advertising” ( Was Sie Aufruhr nennen, nenne ich Werbewirksamkeit ) was published on the portal. H.K. stated, inter alia, that posters and slogans had to generate emotion, because without emotion there could be no success in politics. He was at that time a member of the Austrian national assembly ( Nationalrat ) and the general secretary of the right-wing Austrian Freedom Party ( Freiheitliche Partei Österreichs, FPÖ). 19. Following the publication of this interview, on the same day a reader with the username “try_error” posted the following comment: “[I]f we did not perpetually misunderstand [the meaning of] freedom of expression and if undermining our constitution and destabilising our form of government were consequently to be made punishable – or at least, if [anti-mafia law] were for once to be applied to the extreme-right scene in Austria – then [H.K.] would be one of the greatest criminals in the Second Republic ...” ( würden wir nicht ewig meinungsfreiheit falsch verstehen und wäre das sägen an der verfassung und das destabilisieren unserer staatsform konsequent unter strafe gestellt, oder wäre wenigstens der mafiaparagraf einmal angewendet worden auf die rechtsextreme szene in österreich, dann wäre [H.K.] einer der größten verbrecher der 2ten republik ... ) 20. On 20 June 2013, H.K. asked the applicant company to delete the comment and to disclose the user data (see paragraphs 6 and 16 above) of the author in order to be able to institute civil and criminal proceedings against him. 21. On 26 June 2013, the applicant company replied that it had deleted the comment but refused to disclose the relevant user data. The time of the deletion was no issue in the following proceedings. Proceedings against the applicant companyProceedings initiated by K.S. and the FPK Proceedings initiated by K.S. and the FPK Proceedings initiated by K.S. and the FPK 22. On 11 June 2012 K.S. and the FPK brought a civil action against the applicant company pursuant to section 18(4) of the E ‑ Commerce Act (see paragraph 37 below). K.S. claimed user data relating to the reader with the username “Tango Korrupti2013” (see paragraph 14 above). The FPK claimed user data relating to the reader with the username “rrrn” (see paragraph 15 above). K.S. and the FPK asserted that the respective posts constituted defamation ( Ehrenbeleidigungen; üble Nachrede ), within the meaning of Article 1330 of the Civil Code (see paragraph 34 below) and within the meaning of Article 111 of the Criminal Code, as well as insulting behaviour ( Beleidigung ) within the meaning of Article 115 of the Criminal Code, and that they needed the user data sought in order for them to be able to lodge claims against those users. 23. The applicant company maintained that it was not obliged to disclose the user data because the comments at issue were not defamatory, but rather constituted permissible value judgments. It referred to K.S.’s position as a politician, the style that he adopted when making public statements, and the kind of expressions used by other members of the FPK. Moreover, it argued that it was – under section 31(1) of the Media Act (see paragraph 35 below), which regulated the protection of editorial confidentiality ( Redaktionsgeheimnis ) – entitled to refuse to disclose its sources. 24. On 10 September 2013 the Vienna Regional Civil Court ( Landesgericht für Zivilrechtssachen Wien ) dismissed the action. It held that it could not be established whether the user comments at issue had undergone a manual review before publication. It considered that the applicant company had acted as a host provider and that section 18(4) of the E ‑ Commerce Act (see paragraph 37 below) was thus applicable. It argued that the question of whether a specific comment was covered by the right to freedom of expression was a matter that had to be examined on a case ‑ by ‑ case basis, given that the limits of acceptable criticism were wider for politicians than for private individuals. It went on to examine the content and the context of the postings and stated that they had been made several days after publication of the respective article as two out of more than 1,600 user comments (see paragraph 13 above). The court found that the comment posted by the reader with the username “Tango Korrupti2013” (see paragraph 14 above) did not directly refer to K.S. but was a general statement concerning a public discussion on corruption. It stated that the second comment posted by the reader with the username “rrrn” (see paragraph 15 above) directly referred to the FPK but was based on a sufficient factual basis given that members of the FPK had previously used terms that originated from the diction of National Socialists, such as “the healthy will of the people” ( gesundes Volksempfinden ) and “block warden” ( Blockwart ). The court concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiffs had not demonstrated that illegal acts had taken place. It was thus not necessary to examine the applicant company’s submissions concerning the protection of editorial confidentiality. The plaintiffs appealed. 25. On 26 May 2014 the Vienna Court of Appeal ( Oberlandesgericht Wien ) allowed the plaintiffs’ appeal and ordered the applicant company to disclose the requested user data within fourteen days and to pay the costs incurred by the plaintiffs during the proceedings. It established that both comments at issue could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code and had been posted within the context of the article with the title “[S.] Brothers take action against forum users”, published on the applicant company’s portal (see paragraph 13 above). The plaintiffs were thus entitled under section 18(4) of the E ‑ Commerce Act to demand the disclosure of the user data. Referring to the Supreme Court’s established case-law (see paragraph 39 below), the Court of Appeal noted that any distinction between a statement of facts, a value judgment and a potentially “excessive” value judgment ( Tatsachenbehauptung, Werturteil und Wertungsexzess ) had to be determined in proceedings against the actual author of the comments in question and not in proceedings against the relevant service provider. In respect of the instant case, it held that the applicant company could not rely on the protection of the right to editorial confidentiality because it had not been possible to establish whether the user comments at issue had been subjected to a manual review before publication. Thus, there was no connection between the applicant company’s journalistic activities and the users’ comments. Section 31(1) of the Media Act (see paragraph 35 below) required at least some kind of action/review/taking account ( Tätigkeit/Kontrolle/Kenntnisnahme ) by an employee of a media company. The applicant company appealed. 26. On 19 February 2015 the Supreme Court ( Oberster Gerichtshof ) upheld the Court of Appeal’s judgment (see paragraph 25 above). It held that information received by persons covered by section 31(1) of the Media Act was protected by editorial confidentiality under that provision only if it had been disclosed to those persons in the course of their carrying out their journalistic activities. It considered that merely screening for keywords with the aid of software was not sufficient to establish a connection with journalistic activity; editorial ex post reviews would not lead to a different result, because they only related to comments that had already been published. As regards the obligation to disclose user data under section 18(4) of the E ‑ Commerce Act, the Supreme Court held that according to its established case-law (see paragraph 39 below) it was sufficient that a layperson ( juristischer Laie ) was capable of perceiving that a finding of liability under Article 1330 of the Civil Code (see paragraph 34 below) could not be ruled out. If that were the case, the person concerned would have an overriding interest in the disclosure of the user data. The Supreme Court reiterated the wording of the comments at issue (see paragraphs 14 and 15 above) and found that they could in general be categorised as “defamatory” within the meaning of Article 1330 of the Civil Code (see paragraph 34 below). It went on to conclude that an overriding legal interest had therefore been substantiated, without specifying the considerations on which it had based that conclusion. 27. According to the Supreme Court, in the absence of any connection with journalistic activity, there had been no unlawful interference with the applicant company’s right to enjoy freedom of the press under Article 10 of the Convention or section 31 of the Media Act. 28. The Supreme Court’s decision was served on the applicant company’s lawyer on 4 May 2015. Proceedings initiated by H.K. 29. On 26 July 2013 H.K. brought a civil action against the applicant company, seeking to obtain from it user data relating to the reader with the username “try_error” (see paragraph 19 above), and essentially relying on the same arguments as those advanced by K.S. and the FPK (see paragraph 22 above). The applicant company maintained substantially the same arguments as it had in the other set of proceedings (see paragraph 23 above). 30. On 25 November 2013 the Vienna Inner City District Court ( Bezirksgericht Innere Stadt Wien ) dismissed the action. It stated that section 31 of the Media Act was not applicable. Pursuant to section 18(4) of the E-Commerce Act, it examined both the wording and the context of the comment within a political discussion and held that the limits of acceptable criticism were wider as regards a politician as such than as regards a private individual. In this respect, the court emphasized H.K.’s own provocative behaviour as a politician that could be perceived as polarizing and occasionally aggressive and inflammatory. It concluded that the requirements for disclosure under section 18(4) of the E ‑ Commerce Act had not been met, because the plaintiff had not demonstrated that an illegal act had taken place. The plaintiff appealed. 31. On 29 April 2014 the Vienna Regional Civil Court allowed the appeal and ordered the applicant company to disclose the relevant user data within fourteen days and to pay the costs incurred by the plaintiff during proceedings. It relied on essentially the same reasoning as the Vienna Court of Appeal in its judgment of 26 May 2014 relating to the action brought by K.S. and the FPK (see paragraph 25 above). The applicant company appealed. 32. On 15 December 2014 the Supreme Court upheld that judgment for essentially the same reasons as those set out in its judgment of 19 February 2015 (see paragraphs 26-27 above). 33. The Supreme Court’s decision was served on the applicant company’s lawyer on 13 February 2015. | This case concerned court orders for the applicant media company to reveal the sign-up information of registered users who had posted comments on its website, derStandard.at, the website of the newspaper Der Standard. This had followed comments allegedly linking politicians to, among other things, corruption or neo-Nazis, which the applicant company had removed, albeit refusing to reveal the information of the commenters. |
802 | Right to liberty and security (Article 5 of the Convention) | 2. The applicant was born in 1964 and lives in Linz. She was represented by Mr H. Graupner and Mr J. Ph. Bischof, lawyers practising in Vienna. 3. The Government were represented by their Agent, Ambassador H. Tichy, Head of the International Law Department at the Federal Ministry for European and International Affairs. 4. The facts of the case, as submitted by the parties, may be summarised as follows. The applicant’s arrest on 7 May 2016 5. On the night of 7 May 2016, a taxi driver notified the police because his passenger, the applicant, said that she could not pay the fare as she did not have any cash with her and had forgotten the PIN number for her debit card. The police officers arriving at the scene explained the next steps to the applicant, namely that her personal details would be recorded and that she could pay the fare the next day, but failure to do so would result in a complaint being filed against her. The applicant then became agitated and started to shout at the police officers. As they could not calm her down, they told her that she was being arrested. The applicant attempted to resist arrest by repeatedly hitting the chest of one of the police officers with her hands. Although she applied a certain physical force, she did not injure the police officer. She was subsequently arrested and later examined by the medical officer ( Amtsarzt ) who indicated that she was fit to undergo detention and had the legal capacity to commit an offence ( Haft- und Deliktsfähigkeit ), but added that this could not be determined with absolute certainty. On the grounds that the applicant had psychotic episodes and was a danger to others when she had such a flare-up of aggression, the medical officer ordered the applicant’s committal to hospital ( Parere ). The arrest by the police was revoked after the public prosecutor ordered that charges be pressed against the applicant without an arrest being made. The applicant’s first placement from 7 May until 20 June 2016 6. Still on the same day, 7 May 2016, the applicant was taken to the Neuromed Campus of the Kepler University Clinic. The placement proceedings ( Unterbringungsverfahren ) conducted there by the Linz District Court ( Bezirksgericht ) led to the applicant being placed in the high-security ward under the Act on the Placement of Mentally Ill Persons in Hospitals (Hospitalisation Act) ( Bundesgesetz über die Unterbringung psychisch Kranker in Krankenanstalten, Unterbringungsgesetz ). Dr M.F., a specialist in psychiatry and neurology, was commissioned to submit an expert opinion on the question whether the applicant met the requirements for a placement, as set out in section 3(1) and (2) of the above ‑ mentioned Act (see paragraph 35 below). 7. In an expert opinion of 17 May 2016, Dr M.F. concluded that the requirements for such a placement were met. The applicant was known to have been suffering from a schizoaffective disorder for years, with the first known institutional inpatient stay dating back to 2006, although she denied any such incidents or any mental disorder. Elements of danger to third parties due to psychosis were present, with the applicant acting as if she was out of touch with reality, and showing an inclination towards aggressive reactions. Given the applicant’s lack of awareness of the fact that she was suffering from a disorder, and her lack of understanding of her need for treatment, Dr M.F. considered that a voluntary hospital stay was not an option. 8. On 23 May 2016 the Linz District Court ordered the applicant’s placement until 20 June 2016, on which date the placement was terminated. The applicant’s second placement from 24 November 2016 until 23 January 2017 9. On 24 November 2016 further placement proceedings were instituted against the applicant by the Linz District Court, after her neighbours had alerted the police as the applicant had, in her apartment, been ranting and raging, talking to herself, and having paranoid ideas and fantasies about killing. In a (second) expert opinion of 15 January 2017, Dr M.F. concluded that the applicant had been suffering from a mental disorder for many years, which now had to be classified as “paranoid schizophrenia”. As the applicant had recently agreed to taking medication, it was to be assumed that the requirements for a placement, specifically the elements of being a danger to others, would not continue beyond the date of the upcoming hearing. The applicant’s second placement lasted from 24 November 2016 until 23 January 2017, on which date that placement was terminated. Criminal proceedings against the applicant 10. On 11 October 2016, that is, prior to the second placement proceedings (see paragraph 9 above), the Linz public prosecutor’s office ( Staatsanwaltschaft ) instigated preliminary proceedings against the applicant for the offences of attempted resistance to State authority ( Widerstand gegen die Staatsgewalt ), under Articles 15 and 269 of the Criminal Code (see paragraphs 27 and 31 below), and fraud ( Betrug ), under Article 146 of the Criminal Code (see paragraph 30 below), in connection with the incident of 7 May 2016 (see paragraph 5 above). 11. Dr W.S., a specialist in neurology and psychiatry, was appointed as the psychiatric expert and was commissioned to submit his findings on whether the applicant had been criminally liable under Article 11 of the Criminal Code (see paragraph 26 below) at the time of the offence on 7 May 2016, and on whether the requirements for confinement in an institution for mentally ill offenders under Article 21 § 1 or Article 21 § 2 of the Criminal Code (see paragraph 28 below) were met, in particular how far offences with serious consequences, such as grievous bodily harm or death threats, would have to be expected in the future. 12. In an expert opinion prepared on 16 November 2016 and formally submitted on 7 December 2016, which was based on the files alone, because he was not able to carry out a face ‑ to ‑ face examination as the applicant did not obey a summons to her examination shortly before her second placement began (see paragraph 9 above), Dr W.S. concluded that the applicant suffered from a schizoaffective disorder. Judging by her ability to control her actions ( Steuerungsfähigkeit ), she had, at the time of the offence, been closer to not being criminally liable than to being liable. However, her ability to act in accordance with an understanding of the wrongfulness of her actions ( Dispositionsfähigkeit ) had not been totally absent. The applicant had thus been criminally liable at the time of the offence. The offence she had been charged with (resisting the police) was not the result of any serious mental or emotional disorder ( seelisch-geistige Abartigkeit ). Dr W.S. concluded that he was not able to make any prognosis about any future offences with serious consequences. 13. On 5 January 2017, that is during the applicant’s second placement (see paragraph 9 above), the Linz public prosecutor’s office charged the applicant with the offence of attempted resistance to State authority under Article 15 § 1 and Article 269 § 1 of the Criminal Code (see paragraphs 27 and 31 below). 14. In a submission of 9 February 2017, the applicant’s defence lawyer lodged a request to be permitted to produce evidence by obtaining a psychiatric and neurological expert opinion aimed at proving that, at the time of the offence, the applicant had lacked capacity for criminal responsibility as defined in Article 11 of the Criminal Code (see paragraph 26 below). He argued that Dr W.S. had not personally examined the applicant, and objected to his expert opinion being used and the same expert being commissioned again. He reiterated that request during the trial hearing of 13 February 2017 before the Linz Regional Court ( Landesgericht ). 15. The Regional Court acceded to the request and ordered another psychiatric expert opinion. In its reasoning, it held that the new expert opinion was commissioned because the opinion provided by Dr M.F. in the first placement proceedings (see paragraph 7 above) had stated that elements of being a danger to others owing to psychosis had been present; moreover, the applicant had had to undergo another inpatient stay in hospital (see paragraph 9 above) after Dr W.S. had prepared his expert opinion. 16. On 1 April 2017, Dr A.K., a specialist in psychiatry and neurology and head of the Forensic Department of the Neuromed Campus of the University Clinic Linz and authorised to teach at university on the basis of a post ‑ doctoral lecturing qualification ( venia docendi ), submitted her twenty ‑ nine ‑ page long expert opinion based on her own examination of the applicant. She concluded that the applicant had already been suffering from a schizophrenic disorder in 2001. Given the multifaceted manifestation of her symptoms, the bizarre subjects of her delusions, her varied hallucinations, her total lack of motivation, her complete social withdrawal, her total loss of the capability to perform socially and of the ability to take care of herself, this had to be classified as undifferentiated schizophrenia. The applicant’s schizophrenic disorder was chronic, she had no awareness of suffering from a disorder and did not accept the necessary treatment. She had repeatedly and without authorisation stopped taking the prescribed medication in the past. At the time of the offence, the applicant had been overcome by her disorder to such an extent that she had no longer had any connection to reality, which is why she had no longer been able to assess the situation in a way that would conform to reality, or to make deliberate decisions or draw conclusions which were not influenced by her disorder. Dr A.K. concluded that, consequently, the applicant had not been criminally liable. With respect to acts of aggression in the future, she considered that the applicant had to be classified as high-risk, as a consequence of, among other things, her lack of awareness of suffering from a disorder, her negative attitude towards treatment, the vast range of existing active symptoms, her documented difficulty in controlling her impulses and the lack of success in treatment so far. This was likely to present a danger to neighbours, caregivers and police officers who could become random victims of serious attacks. Dr A.K. finally noted that the medical requirements for confinement under Article 21 § 1 of the Criminal Code (see paragraph 28 below) were met as mere outpatient treatment would not be sufficient at that time. Proceedings for the applicant’s detention as a preventive measure (confinement in an institution for mentally ill offenders) 17. On 19 April 2017 the Linz public prosecutor’s office, on the basis of Dr A.K.’s expert opinion, replaced the criminal charges against the applicant (see paragraph 13 above) with a request for her detention as a preventive measure, that is her confinement in an institution for mentally ill offenders ( Einweisung in eine Anstalt für geistig abnorme Rechtsbrecher ) under Article 21 § 1 of the Criminal Code (see paragraph 28 below). The applicant was arrested on 8 May 2017 and, on the following day, was again taken to the Neuromed Campus of the Kepler University Clinic. The Linz Regional Court ordered her provisional detention ( vorläufige Anhaltung ) under Article 429 § 4 of the Code of Criminal Procedure (see paragraph 34 below). 18. During the trial hearing of 8 August 2017, the applicant, represented by a new defence lawyer, was examined, as were the witnesses, and all of the above ‑ mentioned expert opinions (see paragraphs 7, 9, 12 and 16 above) were read out. Dr A.K. explained her opinion in detail, maintaining it in full and addressing the opinions submitted by Dr W.S. and Dr M.F. with regard to the differences in their conclusions. 19. By a judgment of 8 August 2017, the Linz Regional Court held that the applicant had committed an offence which, had she been criminally liable at the time of the offence, would have had to be attributed to her as the offence of attempted resistance to State authority under Article 15 § 1 and Article 269 § 1 of the Criminal Code (see paragraphs 27 and 31 below). Furthermore, the applicant had committed this offence under the influence of a state of mind which excluded criminal liability under Article 11 of the Criminal Code (see paragraph 26 below), resulting from a serious mental or emotional disorder, namely undifferentiated schizophrenia. As it had to be feared that the applicant would commit further punishable offences with serious consequences, the court ordered her confinement in an institution for mentally ill offenders under Article 21 § 1 of the Criminal Code (see paragraph 28 below). The court based its findings regarding the applicant’s criminal liability and dangerousness above all on the expert opinion provided by Dr A.K., which was found to be conclusive and comprehensible and free from contradictions and uncertainties. 20. The applicant lodged a plea of nullity ( Nichtigkeitsbeschwerde ) against the judgment and an appeal against the sentence, and a request to be permitted to produce evidence by obtaining a further psychiatric expert opinion under Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 below), aimed at proving that she was not dangerous within the meaning of Article 21 § 1 of the Criminal Code (see paragraph 28 below). She also lodged an individual application to challenge the constitutionality of the law ( Parteienantrag auf Normenkontrolle ) with the Constitutional Court ( Verfassungsgerichtshof ). 21. On 6 March 2018 the Constitutional Court declined to deal with the application for lack of prospects of success. It referred to the limits set by the legislature in Article 21 §§ 1 and 3 and Article 25 §§ 1 and 3 of the Criminal Code (see paragraphs 28 ‑ 29 below) in respect of ordering preventive confinement, and those with regard to persons remaining in preventive confinement which, with due consideration being given to the dangerousness of the person concerned, prevented disproportionate confinement in an institution. It further found that the statutory rules of Article 21 § 1 of the Criminal Code (see paragraph 28 below) were not indeterminate or arbitrary, and that the legislature had thus made use of its discretion in a manner which was irreproachable under constitutional law. 22. On 27 June 2018 the Supreme Court ( Oberster Gerichtshof ) rejected the applicant’s plea of nullity and referred the case to the Linz Court of Appeal ( Oberlandesgericht ) for a decision on the appeal. It considered that the applicant had presented arguments for an appeal but not for nullity; further, the applicant had failed to lodge a request under the first sentence of Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 below), in accordance with which doubts about the expertise of an expert must first be dispelled by questioning the expert in question, and if this failed to achieve the desired result, by consulting another expert. 23. On 6 August 2018 the Linz Court of Appeal dismissed the applicant’s request to be permitted to produce evidence by obtaining a further psychiatric expert opinion. It considered that the Regional Court had already correctly pointed out why the earlier expert opinions, geared towards different statutory requirements, had not been able to call into question the expert opinion obtained in the present proceedings and based on an in-person examination. There was thus no contradiction between the expert opinions and there were no deficiencies in terms of substance within the meaning of Article 127 § 3 of the Code of Criminal Procedure (see paragraph 27 below) which would have necessitated a further expert opinion. 24. Given the lapse of time since the preparation of the most recent expert opinion (see paragraph 16 above), the Court of Appeal requested a supplementary opinion thereto on the question whether the requirements for conditional release were (now) met. On 30 July 2018 Dr A.K. found – after another face ‑ to ‑ face examination – that the applicant was still suffering from undifferentiated schizophrenia and was, at that time, not in remission. She further maintained her previous conclusions, including that there was a still a high probability of offences with serious consequences being committed in the future and that therefore, the psychiatric requirements for confinement in an institution under Article 21 § 1 of the Criminal Code (see paragraph 28 below) were met. On this basis, the Court of Appeal held that conditional suspension of confinement was not a viable option at the time. Subsequent developments 25. On 15 October 2020 the Linz Regional Court ordered the applicant’s conditional release by 30 October 2020, imposing specific requirements and a probationary period of five years. No further details about the applicant’s mental health condition or the expert opinions obtained in the context of her release were provided by the parties. | This case concerned the confinement of the applicant in an institution for mentally ill offenders as a preventive measure. She had been charged with resisting arrest after she had struck a police officer who had been called when she had been unable to pay a taxi fare. The applicant submitted in particular that her confinement in an institution for mentally ill offenders had not been proportionate or necessary. |
553 | Verbal abuse and threats | I. THE CIRCUMSTANCES OF THE CASE 5. The first applicant was born in 1971 and lives in Devecser. The second applicant was born in 1979 and lives in Ajka. The applicants are of Roma origin. 6. Mr G.F., a Member of Parliament from the right-wing Movement for a Better Hungary Party ( Jobbik Magyarországért Mozgalom Párt, hereinafter referred to as Jobbik ), announced that a demonstration would take place on 5 August 2012 in Devecser under the slogan “Live and let live”. The reason for the demonstration was that riots had broken out between Roma and non-Roma families of the municipality on 25 July 2012. Following that incident, seventeen people were questioned by the police, and an enhanced police presence was ordered in the municipality, with the constant surveillance of streets inhabited by the Roma community. 7. In the applicants ’ submission, the police were aware that the presence of a hostile crowd in the municipality could lead to violent acts. The police had been informed through official sources that in addition to the members of Jobbik, nine far-right groups, known for their militant behaviour and anti-Roma and racist stance, would also be present at the demonstration. They had also been informed that the demonstrators would seek conflict with the police and the minority community. According to the far-right organisations ’ websites, the demonstration was aimed “against Roma criminality”, “against the Roma of Devecser beating up Hungarians” and “against the Roma criminals unable to respect the rules of living together”. 8. Devecser was classified as special zone of risk, ( kiemelten veszélyeztetett ) and eight police patrol units were dispatched to the municipality to ensure an increased presence and carry out checks as of 1 August 2012. About 200 police officers were deployed in Devecser to secure the demonstration, including members of the Operational Squad. On the day of the demonstration checks were increased throughout the county, including traffic check points. The Veszprém county police department also asked members of the Ethnic Roma Self-Government of Veszprém county to inform the Roma population about the upcoming demonstration. 9. About 400 to 500 people were present at the demonstration. Mr G.F. announced that the demonstration was about the justified self-protection of Hungarians. Invoking the crimes committed by members of the Roma community, he demanded the reintroduction of the death penalty and threatened the Roma community that if the criminality continued, Jobbik would return to Devecser. He also announced that the Roma were not “normal”. 10. In his speech, Mr L.T., leader of the Sixty - four Counties Youth Movement ( Hatvannégy Vármegye Ifjúsági Mozgalom ), mentioned that Roma criminality was omnipresent in the country and wherever this ethnic group appeared, only destruction, devastation and fear came. In his opinion the Roma population wanted to exterminate Hungarians, which left the latter with the choice of becoming victims or fighting back. Mr A.L., leader of the Civil Guard Association for a Better Future ( Szebb Jövőért Polgárőr Egyesület ) stated that hundreds of Hungarians were killed yearly by the Roma with the approval of the State. In his view there was a destruction of civilians going on in Hungary. He called on the demonstrators to sweep out the “rubbish” from the country, to revolt and to chase out the treasonous criminal group supressing Hungarians. He closed his speech by saying that the Hungarians were entitled to use all means to achieve those goals. Mr Zs.Ty., leader of the Outlaws ’ Army ( Betyársereg ), spoke about the characteristics of a racial war and an ethnic-based conflict. He said that before such conflict escalated, a message should be sent. He mentioned that the Roma minority was genetically encoded to behave in a criminal way and declared that the only way to deal with the Roma was by applying force to “ stamp out this phenomenon that needs to be purged”. Mr I.M., the leader of the New Guard ( Új Gárda ), called on the Government to end Roma criminality and warned that if Hungarians ran out of patience, there would be trouble. Finally, Mr I.O., the vice-president of Jobbik in Veszprém county, told participants that there would be no mercy and that every criminal act and every prank would be revenged; if the State authorities did not live up to their obligations to protect civilians from Roma criminality, this would be done by the population itself. 11. Following the speeches, the demonstrators marched down Vásárhelyi Street, the neighbourhood of Devecser inhabited by the Roma community, chanting “Roma criminality”, “Roma, you will die”, and “We will burn your house down and you will die inside”, “We will come back when the police are gone”, and obscene insults. They also called on the police not to protect the Roma residents from the demonstrators and to let them out from their houses. Sporadically, quasi ‑ military demonstrations of force occurred, involving military-style uniforms, formations, commands and salutes. 12. Certain demonstrators covered their faces, dismantled the cordon and were equipped with sticks and whips. Those leading the demonstration threw pieces of concrete, stones and plastic bottles into the gardens, encouraged by the crowd following them. 13. The Government and the applicants disagreed as to other aspects of the demonstration. 14. During the march through the Roma neighbourhood, which lasted approximately thirty minutes, both applicants stayed in the gardens of houses in Vásárhelyi Street. The first applicant submitted that he had overheard the police stating on their radio that the demonstrators were armed with sticks, stones, whips and metal pipes. Furthermore, one of his acquaintances had been injured by a stone thrown into his garden, but the police officer to whom the applicant had reported the incident had not taken any steps. In the second applicant ’ s submission, two of the demonstrators leading the march had had a list and had pointed out to the crowd the houses that were inhabited by Roma people. 15. According to the applicants, the police were present during the demonstration but remained passive and did not disperse the demonstration; nor did they take any steps to establish the criminal responsibility of the demonstrators. The report of the police ’ s contact officer noted that the organiser of the demonstrations, Mr G.F. had not been able to keep the events under control and had been unwilling to confront the participants. 16. According to the Government, the commander of the security forces immediately took action when the participants started to act violently, managed the crowd appropriately and separated hostile demonstrators from others. 17. On 21 September 2012 the Minister of the Interior, reacting to a letter from civil society organisations, informed the public that the conduct of the police had been adequate and that forty people, including five demonstrators, had been questioned by the police. Following a statement from two injured persons, the police opened criminal proceedings against unknown perpetrators on charges of “disorderly conduct” ( garázdaság ), which was subsequently amended to “violence against a member of a group” ( közösség tagja elleni erőszak). It appears from the case file that a further criminal investigation was opened into charges of “violence against a member of a group” several months after the incident. 18. In November 2012 the Office of the Commissioner for Fundamental Rights published a report on the events. The report concluded that the police had failed to assess whether the event had infringed the rights and freedoms of others. Such assessment would have led to the conclusion that the people living in the neighbourhood were forced as a “captive audience” to listen to the injurious statements that had been made. According to the report, the demonstration had been used to incite ethnic tensions on the basis of the collective guilt of the ethnic group. It went on to state that by not enforcing the limits of freedom of assembly, the police had caused anomalies in respect of the right to peaceful assembly and the Roma population ’ s right to dignity and private life. It also pointed out that certain speeches had been capable of inciting hatred, evidenced by the fact that stones had been thrown at Roma houses following the speeches. The Commissioner found it regretful that the police had failed to identify the perpetrators on the spot, which was inconsistent with their task of preventing and investigating crimes and with the right to dignity, non-discrimination and physical integrity. 19. Both applicants complained to the Veszprém county police department about the failure of the police to take measures against the demonstrators, thereby endangering their life and limb and their human dignity. 20. On 22 November 2012 the police department dismissed the applicants ’ complaint, finding that the conditions for dispersal of the demonstration had not been met, since any illegal or disorderly conduct on the part of the demonstrators had ceased within ten minutes. The police department held that the demonstration had remained peaceful, since, apart from the throwing of stones, no actual conflict had broken out between the police, the demonstrators and members of the Roma minority. It also found that only a small group of demonstrators had been armed with sticks and whips. As regards the failure of the police to carry out identity checks on demonstrators and to hold suspects for questioning ( előállítás ), the police department found that such measures would only have aggravated the situation and strengthened the demonstrators ’ hostility towards the police. 21. On appeal, the National Police Service upheld the first-instance administrative decision. Following a request for judicial review lodged by the applicants, it nonetheless overruled the first-instance decision and remitted the case to the county police department. 22. By its decisions of 29 October 2013 and 25 June 2014 the Veszprém county police department dismissed both applicants ’ complaints again on identical grounds. The police department found that the demonstration had remained essentially peaceful, because the majority of the participants had not aligned themselves with those committing violent acts. The police department observed that there had been grounds to disperse the demonstration, since some participants had been armed and there had been a reasonable suspicion that some of them had committed the criminal offence of violence against a member of a group. Nonetheless, it concluded that dispersing the demonstration would have carried a high risk since, based on previous experience, those participants intent on violence would probably have turned against the police. 23. The National Police Service upheld those decisions on appeal on 19 December 2013 and 5 August 2014, respectively, stating that although under section 14 of Act no. III of 1989 (“the Freedom of Assembly Act”) the police had been under an obligation to disperse the demonstration, they could refrain from such action if it carried a higher risk than allowing the demonstration to continue. Furthermore, the commander of the operation had been right not to apply measures against certain individuals, since that would have led to a clash between the demonstrators and the police, endangering not only the police themselves, but the local residents too. The second-instance authority acknowledged that the unlawful acts of certain demonstrators had infringed the fundamental rights of the applicants, but concluded that seeking to protect those rights would have caused more harm than good. 24. The applicants sought judicial review of those decisions, arguing that under section 14 of the Freedom of Assembly Act the police were under an obligation to disperse non-peaceful demonstrations irrespective of the proportionality of such a measure. 25. In its judgments delivered on 3 December 2014 and 19 March 2015 the Veszprém Administrative and Labour Court dismissed the applicants ’ claims. It found that although the non-peaceful character of a demonstration could serve as grounds for its dispersal, this was only so if the demonstration as a whole had ceased to be peaceful. Sporadic acts of violence, as in the present case, could not serve as legitimate grounds for dispersal. The court also considered that the police had a margin of discretion when deciding on the dispersal of a demonstration. As regards the applicants ’ claim that the police should have taken law-enforcement measures against certain individuals, the court pointed out that such actions would have led to clashes between the demonstrators and the police. The court therefore concluded that even if there had been grounds to terminate the demonstration or to apply law-enforcement measures against certain individuals, the police had been justified in not having done so. It added that, in any event, the potential infringement of the applicants ’ fundamental rights had been caused not by the alleged inactivity of the police, but by the conduct of the demonstrators. 26. The applicants lodged a petition for review with the Kúria. In its judgments of 23 September 2015 and 6 January 2016 the Kúria reiterated that under the Freedom of Assembly Act no. III of 1989 the dispersal of demonstrations was a possibility rather than an obligation for the police and restrictions on the fundamental rights of others did not in themselves justify the restriction of the right of assembly. Furthermore, dispersal could only be used as a last resort, if the demonstration was likely to entail serious consequences. Relying on the report by the Commissioner for Fundamental Rights, the Kúria considered that despite certain violent actions, the demonstration had on the whole remained peaceful. The court went on to find that the police had been under an obligation to respect the principle of proportionality and had been right to conclude that dispersing the march could have caused more serious prejudice to the Roma community than allowing the demonstration to continue in a controlled manner. As regards the lack of individual measures, the Kúria found that an operational unit of the police ( csapaterő ) had been deployed to maintain order, and that such a measure had not allowed for police officers to single out and act against individual demonstrators. The Kúria also rejected the applicants ’ argument that the police had done nothing to protect them and other members of the Roma minority. It found it established that the police had used a cordon to contain the demonstrators and had ensured the subsequent prosecution of perpetrators by logging events, and taking video footage and photographs. 27. The applicants, together with the Hungarian Helsinki Committee, lodged a criminal complaint concerning the speeches delivered at the demonstration and the attacks to which the Roma community had been subjected. The case was subsequently joined to a criminal complaint lodged by third persons concerning the same issue. On 22 November 2012 the Veszprém county police department opened an investigation into charges of violence against members of a group under Article 174/B of the Criminal Code. The police department opened a separate investigation, under Article 269 point (b) of the Criminal Code (incitement against a group), into the issue of the speeches delivered during the demonstration. 28. The investigation into incitement against a group was discontinued by the police department on 24 September 2013. The police department considered that although the content of the speeches had been injurious to the Roma minority and was morally reprehensible, it could not be classified as a crime. In particular, the speeches had not been meant to trigger unconsidered, instinctive, harmful and hostile reactions. By the same decision, the police department informed the applicants that it had asked the prosecutor ’ s office to press charges against an individual for violence against member of a group. 29. Following a complaint lodged by the applicants, the Veszprém County Prosecution Office upheld the decision to discontinue the investigation. It held that the legally protected interest in the criminalisation of incitement against a group was public morale. Thus the applicants were not victims of the alleged criminal act and had no standing to lodge a complaint against the decision to discontinue the investigation. However, the county prosecution office re-examined the decision on its own motion. It held that the speeches delivered in Devecser contained abusive, demeaning statements concerning the Roma minority and might have contained statements that evoked hatred, but that they had not provoked active hatred and had not called on the audience to take violent action against the local Roma. 30. As regards the investigation into the offence of violence against a member of a group, the police established that four persons had taken part in violent acts, in particular the throwing of stones. Three of the alleged perpetrators could not be identified, while the Veszprém County Prosecutor ’ s Office pressed charges against the fourth person, Mr T.K. He was found guilty as charged on 2 June 2015 by the Ajka District Court and sentenced to ten months ’ imprisonment, suspended for two years. On appeal the Veszprém High Court upheld Mr T.K. ’ s conviction but amended his sentence to one year and three months ’ imprisonment, suspended for three years. 31. The applicants, together with a third person, also lodged a criminal complaint against unknown perpetrators for breach of discipline in the line of duty, under Article 438 of the Criminal Code. Those proceedings were discontinued on 17 October 2012 by a decision of the Central Investigation Office of the Public Prosecutor, which held that the criminal offence could only be committed by soldiers in military service, but not by police officers. | This case concerned an anti-Roma demonstration. The applicants – both of whom are of Roma origin – alleged that the police had failed to protect them from racist abuse during the demonstration and to properly investigate the incident. |
656 | Freedom of expression (Article 10 of the Convention) | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1934 and lives in Ledinci. In December 2006 her pension was 6,568.30 Serbian Dinars (“RSD”), i.e. approximately 80 Euros (“EUR”). 6. The relevant facts of the case, as submitted by the parties, may be summarised as follows. A. The criminal case and other related proceedings 7. On 8 April 2005 the Novi Sad Municipal Court, acting on the basis of a private criminal action ( privatna krivična tužba ) filed on 10 March 2003, found the applicant guilty of criminal defamation ( kleveta ) and sentenced her to six months ’ imprisonment, suspended for a period of two years ( uslovna osuda; see paragraph 35 below). Ms SN, a journalist, was also found guilty of the same offence and sentenced identically. 8. The Municipal Court noted, inter alia, that on 12 December 2002 Dnevnik, a Novi Sad daily newspaper, had published an article, prepared by Ms SN and based on the information provided by the applicant, to the effect that the latter ’ s lawyer, Mr NB, had deliberately failed to represent her properly in a pending civil case. The article maintained that this was subsequently confirmed by the Novi Sad Police Department. The Municipal Court described the applicant ’ s and article ’ s assertions as lacking any factual basis and being aimed solely at harming the honour and reputation of Mr NB, a highly respected member of the Novi Sad legal community and a former judge. 9. On 11 January 2006 the Novi Sad District Court upheld this judgment on appeal and endorsed its reasoning. The applicant received the District Court ’ s decision on 19 July 2006. 10. On 16 August 2006 the applicant filed a request for the reopening of these proceedings. 11. Following two remittals, on 29 July 2009 the Municipal Court accepted the applicant ’ s motion and reopened the case. The applicant personally and a number of witnesses were reheard and numerous documents/files were re-examined, but ultimately, on 25 March 2011, both the original conviction and the sentence imposed were reaffirmed in their entirety. The Municipal Court ’ s reasoning likewise remained the same. It clarified, however, that, whilst the police had indeed filed a criminal complaint against Mr NB on 1 5 May 2002, by 5 July 2002 the Novi Sad Municipal Public Prosecutor ’ s Office had informed the applicant of its formal rejection based on the applicable statute of limitation. The applicant had thereafter attempted to take over the prosecution of the case in the capacity of a subsidiary prosecutor, but this had ultimately been rejected by the courts by 30 September 2004. 12. On 29 November 2011 the Novi Sad Appeals Court upheld the Municipal Court ’ s judgment of 25 March 2011. The applicant was served with the Appeals Court ’ s decision on 21 December 2011. 13. On 19 January 2012 the applicant filed a further appeal with the Constitutional Court, complaining, inter alia, about the outcome, fairness and length of the criminal proceedings, as well as the alleged breach of her freedom of expression. This appeal is still pending. B. The civil suit and other related proceedings 14. On 19 December 2006 Mr NB filed a separate civil claim for damages with the Novi Sad Municipal Court, alleging that he had suffered mental anguish due to the publication of the impugned article. 15. On 31 January 2007 the Municipal Court ruled partly in favour of Mr NB and ordered the applicant to pay RSD 300,000 in compensation, together with default interest, plus costs in the amount of RSD 94,120, i.e. approximately EUR 4,900 Euros in all. 16. In its reasoning the Municipal Court found that: (a) the applicant had already been convicted of defamation within the criminal proceedings (see paragraph 40 below); (b) having examined Mr NB ’ s professional conduct, her allegations had clearly lacked any factual basis; and (c) this had offended the honour, reputation and dignity of Mr NB and had caused him profound mental anguish (see paragraph 38 below). 17. On 16 April 2009 the District Court in Novi Sad rejected the applicant ’ s appeal, and in so doing endorsed the reasons given at first instance. The applicant received the District Court ’ s decision on 30 April 2009. 18. The applicant could not file an appeal on points of law, revizija, with the Supreme Court in view of the amount of damages awarded. 19. On 29 May 2009 the applicant thus filed an appeal with the Constitutional Court. This appeal was, effectively, supplemented by memorials of 21 November 2009, 27 June 2011 and 25 November 2011. The applicant complained about the breach of her right to freedom of expression, as well as the procedural fairness. Concerning the former she specifically referred to the disproportionate nature of the damages awarded, and cited the relevant Strasbourg case-law (such as, for example, Tolstoy Miloslavsky v. the United Kingdom, 13 July 1995, Series A no. 316 ‑ B; and Filipović v. Serbia, no. 27935/05, 20 November 2007 ). The applicant, lastly, complained about the consequent danger to her life and her health, as described at paragraphs 30 and 31 below. 20. On 6 August 2009 the applicant requested that the Constitutional Court order the suspension of the civil enforcement proceedings brought against her (see paragraphs 25-29 below). 21. On 9 December 2009 the Municipal Court rejected the applicant ’ s motion for the reopening of the civil proceedings, and on 7 May 2010 the Novi Sad High Court upheld this decision on appeal. 22. On 27 April 2011 the applicant again requested that the Constitutional Court order the suspension of the said enforcement proceedings. 23. On 15 December 2011 the Constitutional Court rejected the constitutional appeal on its merits, stating, inter alia, that the impugned decisions had been adopted in accordance with the law, that they had been well-reasoned, and that it was not its function to assess whether the amount of compensation which had been awarded was disproportionate. The Constitutional Court made no mention of the applicant ’ s complaint concerning her medical situation. 24. The applicant was apparently informed of this decision in the Constitutional Court ’ s letter of 21 December 2011, and received it by 23 April 2012 at the latest. C. The enforcement proceedings 25. On 13 July 2009 Mr NB filed a motion with the Novi Sad Municipal Court, seeking enforcement of its judgment dated 31 January 2007. 26. On 14 July 2009 the Municipal Court issued an enforcement order whereby two thirds of the applicant ’ s pension were to be transferred to the creditor ’ s bank account each month, until the sums awarded to the latter have been paid in full (see paragraphs 41-43 below). 27. The said deductions to the applicant ’ s monthly income began as of 8 August 2009. 28. In May 2012 the applicant ’ s monthly pension was RSD 19,707, approximately EUR 170. After deductions, the applicant was left with approximately EUR 60 on which to live. 29. By 30 June 201 3 the applicant had paid a total of RSD 496, 471. 1 0, i.e. approximately EUR 4,350. However, given the accrued and future interest, she would have to continue with the payments for approximately another two years ( see paragraphs 44-50 below). D. The applicant ’ s medical condition 30. The applicant suffered from a number of diseases including cataracts, progressive ocular hypertension, which had allegedly caused a total loss of vision in her left eye, angina pectoris, and clinical depression. She had also had a pacemaker installed several years ago, had suffered a stroke and was in need of hip surgery. 31. The applicant maintained that she needed a minimum of RSD 5,000 monthly for her medication, i.e. approximately EUR 44, but that she could no longer afford to buy it. E. Other relevant facts 32. On 21 September 2006, concerning the same article published on 12 December 2002, the Novi Sad Municipal Court ruled in favour of Mr NB and ordered Ms SN, Dnevnik, and the Autonomous Province of Vojvodina (as the said newspaper ’ s founder) jointly to pay RSD 300,000 in compensation for the non-pecuniary damage suffered, together with default interest, plus costs in the amount of RSD 55,600, i.e. approximately EUR 4,12 0 in all. On 13 December 2006 this judgment was upheld by the Novi Sad District Court on appeal. 33. The applicant maintained that on 13 April 2013 her gas supply had been disconnected in view of her continuing inability to pay her utilities. I. The Constitutional Court ’ s decision IUz-82/09 of 12 July 2012 published in OG RS no. 73/12 47. Based on this decision and as of 27 July 2012, the Constitutional Court repealed the method of calculating interest as set out in Article 3 § 1 of the Statutory Interest Act 2001. J. The Statutory Interest Act 2012 ( Zakon o zateznoj kamati; published in OG RS no. 119/12) 48. Article 2 provides that statutory interest shall be paid as of the date of maturity of a recognised monetary claim until the date of its settlement. 49. Article 3 states that such interest shall be calculated annually based on the Serbian National Bank ’ s reference interest rate and increased by eight percentage points. 50. This act entered into force on 25 December 2012 and thereby repealed the Statutory Interest Act 2001. | In 2006 the applicant, a pensioner suffering from various illnesses, was found guilty of defaming her lawyer and ordered to pay him 300,000 dinars in compensation, together with default interest, plus costs in the amount of 94,120 dinars (equivalent to approximately 4,900 euros in all). In July 2009 the Municipal Court issued an enforcement order requiring two thirds of the applicant’s pension to be transferred to the lawyer’s bank account each month, until the sums awarded had been paid in full. After these deductions the applicant was left with approximately 60 euros a month on which to live. |
969 | Internet sites containing legal information | I. THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1974. He is serving a life sentence in prison. A. The applicant ’ s complaint against Pärnu Prison 6. On 21 July 2005 the applicant requested from the Governor of Pärnu Prison access to (i) the online version of Riigi Teataja (the State Gazette), (ii) the decisions of the Supreme Court and administrative courts, which are available on the Internet, and (iii) the HUDOC database of the judgments of the European Court of Human Rights. The Governor refused his request. The applicant ’ s subsequent complaint was dismissed by the Pärnu Administrative Court; the Tallinn Court of Appeal dismissed his further appeal. The applicant then appealed to the Supreme Court. 7. The Administrative Law Chamber of the Supreme Court delivered its judgment on 31 May 2007 (case no. 3-3-1-20-07). In respect of Estonian legislation and the Supreme Court ’ s rulings, the Supreme Court noted that these were available in the paper version of Riigi Teataja; it considered access to the paper version sufficient and found that the prison ’ s refusal to grant the applicant access to the online version of Riigi Teataja had been lawful. 8. However, the Supreme Court noted that from 1 January 2007 the primary official version of Riigi Teataja had been its online version and that since then only five “ control copies ” of each edition had been printed. Despite that fact, the prisons had a duty to ensure that detainees had a reasonable possibility of searching for and familiarising themselves with legal acts. 9. Furthermore, the Supreme Court considered that the refusal of the prison administration to grant detainees access to the rulings of the administrative courts and of the European Court of Human Rights interfered with their right to freely obtain information disseminated for public use. Given that the legislature had not specified any restrictions in this regard in respect of prisoners, their right – enshrined in Article 44 § 1 of the Constitution of the Republic of Estonia ( Eesti Vabariigi põhiseadus ) – to obtain information had to be given an equal level of protection as that afforded to persons at liberty. Accordingly, the refusal of Pärnu Prison to grant the applicant access to the rulings of the Estonian administrative courts and the European Court of Human Rights had been unlawful. B. The applicant ’ s complaint against Tartu Prison 10. On 18 October 2007 Tartu Prison – to which the applicant had been transferred in the meantime – refused the applicant ’ s request to be granted access to the Internet sites www.coe.ee (the Council of Europe Information Office in Tallinn), www.oiguskantsler.ee (the Chancellor of Justice, or Õiguskantsler )) and www.riigikogu.ee (the Estonian Parliament, or Riigikogu ). According to the applicant, he was involved in a number of legal disputes with the prison administration and needed access to those Internet sites in order to be able to defend his rights in court. 11. On 23 November 2007 the applicant ’ s complaint was dismissed by the Ministry of Justice. 12. By a judgment of 17 July 2008 the Tartu Administrative Court upheld the applicant ’ s complaint in respect of the Internet site www.coe.ee and ordered Tartu Prison to grant him supervised access to that site via a computer adapted for that purpose. The Administrative Court noted that Tartu Prison had afforded its detainees access to the online version of Riigi Teataja, the database of judicial decisions, and the Internet sites of the European Court of Human Rights and the Supreme Court. The Administrative Court further referred to the Supreme Court ’ s judgment of 31 May 2007 (see paragraphs 7 and 9 above) and to section 31-1 of the Imprisonment Act ( Vangistusseadus ) (see paragraph 21 below), which had entered into force on 1 June 2008. It noted that the Internet site of the European Court of Human Rights – to which detainees had been granted access – contained information only in English and French, whereas translations into Estonian of the rulings of the European Court of Human Rights were available on the Internet site of the Council of Europe Information Office in Tallinn. The Administrative Court considered that the burden of having the rulings of the European Court of Human Rights translated into Estonian could not be placed on the applicant and concluded that he also had to be granted access to the Internet site www.coe.ee. It considered that this Internet site was similar to the database of judicial decisions referred to in section 31 -1 of the Imprisonment Act. In respect of the Internet sites www.oiguskantsler.ee and www.riigikogu.ee, the court found that access to these sites was not foreseen by section 31-1 of the Imprisonment Act; in any case, the applicant could request information directly from the institutions concerned or from Tartu Prison. 13. Both parties appealed. On 31 October 2008 the Tartu Court of Appeal dismissed both appeals and upheld the first-instance court ’ s judgment. 14. Both parties challenged the Appeal Court ’ s judgment before the Supreme Court. The Administrative Law Chamber of the Supreme Court referred the case to the Supreme Court ’ s plenary session on a point of constitutionality. By a judgment of 7 December 2009 the plenary session of the Supreme Court dismissed the applicant ’ s appeal and upheld Tartu Prison ’ s appeal. It quashed the lower courts ’ judgments in so far as these granted the applicant access to the Internet site www.coe.ee. 15. The Supreme Court found that the Internet sites in question did not fall under the exceptions provided for in section 31-1 of the Imprisonment Act (see paragraph 21 below). Thus, the Supreme Court had to determine whether that provision was in conformity with the Constitution. The Supreme Court found that section 31 - 1 of the Imprisonment Act interfered with the right – enshrined in Article 44 § 1 of the Constitution – to freely obtain information disseminated for public use. It noted that the aims of imprisonment included the protection of the legal order and steering detainees towards law-abiding behaviour. As the possibility could not be technically excluded that detainees might misuse the right to use the Internet, access to the Internet was prohibited to them by section 31-1 of the Imprisonment Act. The exception made in respect of the official databases of legislation and the database of judicial decisions was necessary in order to ensure that detainees were afforded an effective possibility to protect their own rights. It had to be taken into account that the official texts of legal acts were only accessible to detainees via the Internet. 16. The Supreme Court observed that the prohibition of the use of the Internet was necessary primarily in order to restrict detainees ’ ability to engage in communication for purposes that did not accord with those of their detention, such as obtaining information that could jeopardise the prison ’ s security or run counter to the directing of detainees towards law-abiding behaviour. Granting detainees access to any additional Internet site increased the security risk of their obtaining information running contrary to the aims of imprisonment. Moreover, this could create an opportunity for detainees to use the Internet for purposes other than that of freely obtaining information disseminated for public use. Thus, the Supreme Court concluded that the prohibition of detainees ’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee was justified by the need to achieve the aims of imprisonment and in particular the need to secure public safety. 17. In respect of the proportionality of the restriction the Supreme Court considered that the denial of detainees ’ access to the Internet sites www.coe.ee, www.oiguskantsler.ee and www.riigikogu.ee prevented them from misusing the Internet via these sites and that public safety was thereby protected. Moreover, granting detainees access to these Internet sites could increase the risk of their engaging in prohibited communication; this in turn would necessitate increased levels of control (and therefore costs). Thus, there were no alternative, equally effective means – besides the prohibition imposed by section 31-1 of the Imprisonment Act – of achieving the legitimate aim in question. Lastly, the Supreme Court noted that detainees were able to contact the Riigikogu and the Chancellor of Justice by mail and make a request for information ( teabenõue ). Therefore, detainees ’ access to the public information contained on the Internet sites in question was not unduly restricted. Detainees ’ access to the Internet site of the European Court of Human Rights was guaranteed, pursuant to section 31-1 of the Imprisonment Act; those of the Council of Europe ’ s conventions and treaties that had been ratified by Estonia were accessible on the Internet site www.riigiteataja.ee. The Supreme Court noted that it did not doubt that the printed works of the Council of Europe were accessible through prison libraries, and nor were detainees prevented from contacting the Council of Europe by post. The Supreme Court concluded that the restriction preventing detainees from accessing the Internet sites www.oiguskantsler.ee, www.riigikogu.ee and www.coe.ee was one of “ low intensity ”; the Supreme Court gave more weight to the aim sought by that restriction. It considered that permitting detainees extensive use of the Internet would increase the likelihood of prison authorities losing control over detainees ’ activities, as it could not be completely excluded that via the Internet sites in question detainees could use the Internet for other, unauthorised purposes. Accordingly, the impugned restriction was in conformity with the Constitution. 18. Four judges out of eighteen delivered a dissenting opinion according to which the applicant should have been granted access to all three of the Internet sites in question. They considered that the use of the Internet sites in question did not generally pose a threat to public safety and was in conformity with the aims of imprisonment. It was unclear what additional costs the State would have to bear, since – in line with the applicable law – prisons were equipped with computers specially adapted to allow detainees access to the official databases of legislation and judicial decisions, and the prison service exercised supervision over the use of such resources. The information available on the Internet sites in question aided the exercising of the right of recourse to the courts. While it was true that detainees could also avail themselves of the right to make a request for information, this was a more time-consuming avenue and, particularly in the case of the Internet site of the Chancellor of Justice, required knowledge of which information was available on such Internet sites. No request for information under the Public Information Act ( Avaliku teabe seadus ) could be made to the Council of Europe Information Office in Tallinn. The rulings of the European Court of Human Rights available in the HUDOC database – which was accessible to detainees – were not in Estonian ( unlike the unofficial translations published on the Internet site www.coe.ee ), and it could not be presumed that detainees had sufficient command of English or French to be able to read them. The printed works of the Council of Europe that were available in prison libraries did not include all the information that was published on the Internet site of the Council of Europe Information Office in Tallinn. Thus, the four dissenting judges concluded that the restriction in question was unconstitutional. ii. general measures have been adopted, preventing new violations similar to that or those found or putting an end to continuing violations.” A footnote relating to the above provision mentions – as an example of general measures to be taken – publication of a judgment of the Court in the language of the respondent State and its dissemination to the authorities concerned. 23. On 28 May 2003, at the 840th meeting of the Ministers ’ Deputies, the Committee of Ministers of the Council of Europe adopted a Declaration on freedom of communication on the Internet. The relevant part of the Declaration reads as follows: Principle 4: Removal of barriers to the participation of individuals in the information society “Member states should foster and encourage access for all to Internet communication and information services on a non-discriminatory basis at an affordable price. Furthermore, the active participation of the public, for example by setting up and running individual websites, should not be subject to any licensing or other requirements having a similar effect.” 24. On 16 April 2014 Recommendation CM/Rec(2014)6 of the Committee of Ministers to member States on a Guide to human rights for Internet users was adopted. The relevant part of the Recommendation reads as follows: “3. The Internet has a public service value. People, communities, public authorities and private entities rely on the Internet for their activities and have a legitimate expectation that its services are accessible, provided without discrimination, affordable, secure, reliable and ongoing. Furthermore, no one should be subjected to unlawful, unnecessary or disproportionate interference with the exercise of their human rights and fundamental freedoms when using the Internet.” Furthermore, the relevant parts of the Guide read as follows: Access and non-discrimination “1. Access to the Internet is an important means for you to exercise your rights and freedoms and to participate in democracy. You should therefore not be disconnected from the Internet against your will, except when it is decided by a court. In certain cases, contractual arrangements may also lead to discontinuation of service but this should be a measure of last resort. ” Freedom of expression and information “You have the right to seek, receive and impart information and ideas of your choice, without interference and regardless of frontiers. This means: 1. you have the freedom to express yourself online and to access information and the opinions and expressions of others. This includes political speech, views on religion, opinions and expressions that are favourably received or regarded as inoffensive, but also those that may offend, shock or disturb others. You should have due regard to the reputation or rights of others, including their right to privacy; 2. restrictions may apply to expressions which incite discrimination, hatred or violence. These restrictions must be lawful, narrowly tailored and executed with court oversight; ... 4. public authorities have a duty to respect and protect your freedom of expression and your freedom of information. Any restrictions to this freedom must not be arbitrary, must pursue a legitimate aim in accordance with the European Convention on Human Rights such as, among others, the protection of national security or public order, public health or morals, and must comply with human rights law. Moreover, they must be made known to you, coupled with information on ways to seek guidance and redress, and not be broader or maintained for longer than is strictly necessary to achieve a legitimate aim ... ” B. Other international documents 25. The UN Human Rights Council ’ s Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression stated the following in his report of 16 May 2011 to the Human Rights Council (A/HRC/17/27): “60. The Internet, as a medium by which the right to freedom of expression can be exercised, can only serve its purpose if States assume their commitment to develop effective policies to attain universal access to the Internet. Without concrete policies and plans of action, the Internet will become a technological tool that is accessible only to a certain elite while perpetrating the “digital divide”. 61. The term “digital divide” refers to the gap between people with effective access to digital and information technologies, in particular the Internet, and those with very limited or no access at all ... [D]igital divides also exist along wealth, gender, geographical and social lines within States. ... 62. The Special Rapporteur is thus concerned that without Internet access, which facilitates economic development and the enjoyment of a range of human rights, marginalized groups and developing States remain trapped in a disadvantaged situation, thereby perpetuating inequality both within and between States. ... 65. In some economically developed States, Internet access has been recognized as a right. For example, the parliament of Estonia passed legislation in 2000 declaring Internet access a basic human right. The constitutional council of France effectively declared Internet access a fundamental right in 2009, and the constitutional court of Costa Rica reached a similar decision in 2010. Going a step further, Finland passed a decree in 2009 stating that every Internet connection needs to have a speed of at least one Megabit per second (broadband level). The Special Rapporteur also takes note that according to a survey by the British Broadcasting Corporation in March 2010, 79% of those interviewed in 26 countries believe that Internet access is a fundamental human right. ... 85. Given that the Internet has become an indispensable tool for realizing a range of human rights, combating inequality, and accelerating development and human progress, ensuring universal access to the Internet should be a priority for all States. Each State should thus develop a concrete and effective policy, in consultation with individuals from all sections of society, including the private sector and relevant Government ministries, to make the Internet widely available, accessible and affordable to all segments of population. ... 87. Where the infrastructure for Internet access is present, the Special Rapporteur encourages States to support initiatives to ensure that online information can be accessed in a meaningful way by all sectors of the population, including persons with disabilities and persons belonging to linguistic minorities.” | This case concerned a prisoner’s complaint about the authorities’ refusal to grant him access to three Internet websites, containing legal information, run by the State and by the Council of Europe. The applicant complained in particular that the ban under Estonian law on his accessing these specific websites had breached his right to receive information via the Internet and prevented him from carrying out legal research for court proceedings in which he was engaged. |
215 | Access to a lawyer | I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born on 14 August 1982 and is currently serving concurrent sentences of imprisonment at the Nicosia Central Prison. A. The applicant ’ s arrest 7. In the context of a police investigation concerning a murder and robbery which took place on 19 April 2000, the police contacted the applicant ’ s father and invited him and the applicant to visit the Limassol police station. At the time the applicant was just over 17 years old. The applicant went to the police station accompanied by his father. The Limassol District Police Director (hereinafter “ the Police Director”) informed the applicant ’ s father, in the presence of the applicant, about the crime that had been committed, the seriousness of the case, and the fact that there was evidence involving the applicant and that an arrest warrant had been issued against him. 8. According to the applicant, he immediately stated that he was innocent. Another police officer told him that his friend had already confessed to murdering the victim together with the applicant. The police officer added that the applicant ’ s friend was crying and hitting his head against a wall while he (the applicant) was merely lying to them. Then, another police officer came into the Police Director ’ s room holding an arrest warrant and informed the applicant that he was under arrest for murder. The applicant replied that he had nothing to add to his statement that he was innocent. The police officer then told the applicant to follow him into a different office. There there were 5 or 6 officers who started asking him questions and inducing him to confess, promising that if he did so they would assist him. They questioned him for approximately 30-40 minutes but he kept saying that he could not remember anything as he had been very drunk the night before. At some stage during the interrogation a police officer put his gun on the desk and told the applicant that he should hurry up as they had other things to do. The police officers told him that if he wanted to go he should confess. Subsequently a police officer suggested that they take a written statement from the applicant and that the police officers would remind him of anything he could not remember. The applicant then agreed to make a written statement. He denied having made any prior oral admission. 9. According to the Government, relying on the testimonies of the police officers participating in the interrogation, the applicant was shown the arrest warrant and informed of the reasons for his arrest, and had his attention drawn to the law. The applicant replied that he had nothing to say other than that he was innocent. He was then taken to a different room for questioning. Before the applicant was questioned the arresting officer explained again the reasons for his arrest, repeated that there was evidence involving the applicant in the circumstances under investigation and cautioned him that anything he said could be used against him in subsequent proceedings. There were four police officers present in the room. The applicant replied that he had not intended to kill anyone and started to give an explanation of the events. According to the arresting officer, the applicant was interrupted and his attention was drawn to the law. During the questioning the applicant confessed his guilt. 10. The parties agreed that when the applicant was taken away for questioning, his father remained in the Police Director ’ s office. He was shocked and after a couple of minutes told the Police Director that they should not use violence against his son. The Police Director replied that the police did not use such practices and added that the case was serious, that there was evidence linking the applicant with the crime and that it was important to seek the advice of a lawyer. He asked the applicant ’ s father whether he wanted to be present while his son was questioned. The father declined the offer. A few minutes afterwards, a police officer entered the room and informed the Police Director and the applicant ’ s father that the applicant had confessed. The Police Director invited the applicant ’ s father to join his son in the interview room so that he could hear what his son had admitted. The applicant ’ s father preferred to wait outside. 11. The applicant was charged with manslaughter and robbery under the Criminal Code (Cap. 154). On 9 May 2000 the applicant noted in an additional written statement : “I did not hit him (the victim) with the stone but only kicked him a couple of times.” B. Proceedings before the Limassol Assize Court 12. The applicant and his co-accused were brought for trial before the Limassol Assize Court. 13. During the trial the applicant maintained that his confession to the police had not been voluntary but the product of deception, psychological pressure, promises, threats and other tactics aimed at creating fear. He also argued that at the time he had made his statement to the police he had been drunk and, therefore, he had not been in a position to remember accurately the facts described in that statement. Furthermore, the applicant argued that he had not had legal advice immediately after his arrest and before being questioned and induced to sign the written statement. 14. On 11 and 12 January 2001 the court heard the evidence of the Police Director concerning the applicant ’ s arrest and questioning. The Director confirmed that he had invited the applicant and his father to his office, where he had told the father, without addressing the applicant, that an arrest warrant had been issued against the applicant in connection with a murder and that there was evidence linking the applicant to the crime. The applicant had then been cautioned, arrested and taken into a separate room for questioning. Shortly after the applicant left the room the Director had explained to the applicant ’ s father the seriousness of the case and suggested that they find a lawyer. 15. On 7 February 2001 the Assize Court, having considered all the evidence put before it, found that the applicant ’ s confession had been voluntary and that he had not been subjected to any undue or improper pressure by the police to secure it. The evidence of the prosecution gave a clear picture of the events that had taken place and the court dismissed the applicant ’ s allegations that, at the time of his confession, he had suffered loss of memory due to drunkenness. The confession was, therefore, admissible as evidence. 16. As regards the applicant ’ s claims concerning the lack of legal representation before his questioning, the court noted that the defence had not relied on any provision or authority recognising a right to have legal advice as a condition for receipt of an accused ’ s statement. Nor had the applicant or his father requested a lawyer and been refused one by the police. Moreover, the Director of Police had advised the applicant ’ s father that he and his son should seek legal representation. Overall, there had been no inappropriate action on the part of the police in this respect. 17. Subsequently, on 14 February 2001, during the main trial, the following exchange took place between the applicant ’ s lawyer, Mr Kyprianou, and the bench (translation of verbatim record of the proceedings): “Mr Kyprianou : I will ask the prosecution to give me all the statements of suspects who made a statement about this case so that I can continue my cross-examination of this witness. The prosecution is obliged to supply me with all the statements taken from other suspects and it is not permissible in our view for the prosecution to hide behind this. Court: First we want you to lower the tone of your voice. You do not let slip an opportunity to attack the prosecution who we believe is trying to present its case in a fair way, at least as the facts so far show. If you asked at some stage for the statements to be given to you and the prosecution refused, that is another matter. Mr Kyprianou : I believed that I would get this from the case file, now I am deprived of this right. I want the complete case file. I cannot continue my cross-examination of this witness if I do not have the complete case file. Ms Kyriakidou (prosecutor) : The position of the prosecution on the basis of Article 7 of the Law on Criminal Procedure (is that) to make any complaint the Defence must apply in writing to the prosecution to ask for any statement in the file and if the Prosecution refuses, then the defence is entitled to complain. Here, the defence did not apply in writing; certain particulars, photographs, plans were asked for verbally and whatever was asked for was given and the prosecution never refused to give anything to the defence. This process did not happen and it is my position that this attitude of the defence is not justified. Court: We have considered the request of the learned counsel of accused no. 2 for the Court to interrupt the proceedings so that he can get statements of persons who gave statements during the investigation of the case from his opponents. As stated earlier today, the defence had a right, on the basis of Article 7 of the Law on Criminal Procedure, Cap.155, to request to be supplied with the said copies from the day when the accused pleaded not guilty, but failed to do so. We do not consider it expedient to break after so much delay and to create a fresh delay for this purpose. In any case, the Court in the present case is occupied with whether the prosecution will succeed in proving the guilt of the accused, who we note are presumed innocent until the prosecution, with their evidence, prove their guilt beyond all reasonable doubt. Whether the examination was unsatisfactory or not is a matter which will be decided at the end of the case. The request is therefore refused. Mr Kyprianou : I would ask for a break of five minutes in view of your ruling to gather my thoughts and see how I shall proceed because I believed that there would be disclosure of all the documents, for this reason I want five minutes to think about what I shall do in view of your ruling, that is to say how I shall proceed with the cross-examination. The cross-examination will take another sitting of the court. So the five minutes I am asking for are not unjustifiable. Court: We will approve a break of ten minutes but we will remind (the defence) that it is the second time that an interruption of the proceedings has been requested for inspecting the case file. We had a break in a previous session and gave a sufficient interval for them to see the file.” 18. Following the break, the proceedings were resumed. At one point a confrontation occurred between the applicant ’ s lawyer, Mr Kyprianou, and the court. Mr Kyprianou was at the time cross-examining a police officer who had taken the applicant ’ s written statement and was asking him about the manner in which an indication by another police-officer to insert the time of taking the statement was made. The court interrupted Mr Kyprianou and noted that they found his questions unnecessary. Mr Kyprianou then sought leave to withdraw from the case which was refused. The verbatim record of the proceedings reports the following exchange (translation): “Court: We consider that your cross-examination goes beyond the detailed cross-examination that can take place at the present stage of the main trial in issues ... Mr Kyprianou : I will stop my cross-examination... Court: Mr Kyprianou ... Mr Kyprianou : Since the Court considers that I am not doing my job properly in defending this man, I ask for your leave to withdraw from this case. Court: Whether an advocate is to be granted leave to withdraw or not, is a matter within the discretionary power of the court and, in the light of what we have heard, no such leave is granted. We rely on the case of Kafkaros and Others v. the Republic and do not grant leave. Mr Kyprianou : Since you are preventing me from continuing my cross-examination on significant points of the case, then my role here does not serve any purpose. ” Court: We consider your persistence... Mr Kyprianou : And I am sorry that when I was cross-examining, the members of the court were talking to each other, passing ‘ ravasakia ’ among themselves, which is not compatible with allowing me to continue the cross-examination with the required vigour, if it is under the secret scrutiny of the court. Court: We consider that what has just been said by Mr Kyprianou, and in particular the manner in which he addresses the court, constitutes a contempt of court and Mr Kyprianou has two choices: either to maintain what he said and to give reasons why no sentence should be imposed on him, or to decide whether he should retract. We give him this opportunity exceptionally. Section 44 (1) (a) of the Courts of Justice Law applies to its full extent. Mr Kyprianou : You can try me. Court: Would you like to say anything? Mr Kyprianou : I saw with my own eyes the small pieces of paper going from one judge to another when I was cross-examining, in a way not very flattering to the defence. How can I find the stamina to defend a man who is accused of murder? Court (Mr Photiou ): It so happens that the piece of paper to which Mr Kyprianou refers is still in the hands of brother Judge Mr Economou and Mr Kyprianou may inspect it. Court (Ms Michaelidou ): The exchange of written views between the members of the bench as to the manner in which Mr Kyprianou is conducting the case does not give him any rights, and I consider Mr Kyprianou ’ s behaviour utterly unacceptable. Court (Mr Photiou ): We shall have a break in order to consider the matter. The defendant (in the main trial) should in the meantime remain in custody. ... Court: We considered the matter during the adjournment and continue to believe that what Mr Kyprianou said, the content, the manner and the tone of his voice, constitute a contempt of court as provided for in section 44 (1) (a) of the Courts of Justice Law 14/60 ... that is, showing disrespect to the court by way of words and conduct. We already asked Mr Kyprianou before the break if he had anything to add before we pass sentence on him. If he has something to add, let us hear him. Otherwise, the court should proceed. Mr Kyprianou : Mr President, certainly during the break, I wondered what the offence was which I had committed. The events took place in a very tense atmosphere. I am defending a very serious case; I felt that I was interrupted in my cross-examination and said what I said. I have been a lawyer for forty years, my record is unblemished and it is the first time that I face such an accusation. That is all I have to say. Court: We shall adjourn for ten minutes and shall then proceed with sentencing.” 19. After a short break the Assize Court, by a majority, sentenced Mr Kyprianou to five days ’ imprisonment. The court referred to the above exchange between Mr Kyprianou and its members and held as follows: “...It is not easy, through words, to convey the atmosphere which Mr Kyprianou created since, quite apart from the unacceptable content of his statements, the tone of his voice as well as his demeanour and gestures to the court not only gave an unacceptable impression of any civilised place, and a courtroom in particular, but were apparently aimed at creating a climate of intimidation and terror within the court. We are not exaggerating at all in saying that Mr Kyprianou was shouting and gesticulating at the court. It was pointed out to him that his statements and his behaviour amounted to contempt of court and he was given the opportunity to speak. And while there was a reasonable expectation that Mr Kyprianou would calm down and that he would apologise, Mr Kyprianou, in the same tone and with the same intensity already referred to, shouted, ‘ You can try me ’. Later, after a long break, Mr Kyprianou was given a second chance to address the court, in the hope that he would apologise and mitigate the damage caused by his behaviour. Unfortunately, at this stage Mr Kyprianou still showed no signs of regret or, at least, of apprehension for the unacceptable situation he had created. On the contrary, he stated that during the break he wondered what his crime had been, merely attributing his behaviour to the ‘ very tense atmosphere ’. However, he was solely responsible for the creation of that atmosphere and, therefore, he cannot use it as an excuse. Mr Kyprianou did not hesitate to suggest that the exchange of views between the members of the bench amounted to an exchange of ‘ ravasakia ’, that is, ‘ love letters ’ (See: ‘ Dictionary of Modern Greek - Spoudi ravasaki (Slavic ravas ), love letter, written love note ’ ). And he accused the Court, which was trying to regulate the course of the proceedings, as it had the right and the duty to do, of restricting him and of doing justice in secret. We cannot conceive of another occasion of such a manifest and unacceptable contempt of court by any person, let alone an advocate. The judges as persons, whom Mr Kyprianou has deeply insulted, are the least of our concern. What really concerns us is the authority and integrity of justice. If the court ’ s reaction is not immediate and drastic, we feel that justice will have suffered a disastrous blow. An inadequate reaction on the part of the lawful and civilised order, as expressed by the courts, would mean accepting that the authority of the courts be demeaned. It is with great sadness that we conclude that the only adequate response, in the circumstances, is the imposition of a sentence of a deterrent nature, which can only be imprisonment. We are well aware of the repercussions of this decision since the person concerned is an advocate of long standing, but it is Mr Kyprianou himself who, through his conduct, brought matters to this end. In the light of the above we impose a sentence of imprisonment of five days”. 20. Mr Kyprianou served his prison sentence immediately. He was in fact released before completing the full term in accordance with section 9 of the Prison Law (Law no. 62(I)/1996). 21. The applicant continued to be represented by Mr Kyprianou for the rest of his trial. 22. On 21 February 2001 the defence requested the judges to withdraw from the case in view of the events that had occurred so that the case could be tried by another bench. Mr Kyprianou requested that the court be addressed by another lawyer in this respect, given the fact that he had been directly concerned by the court ’ s decision on contempt. The defence was concerned that the court would not be impartial. This request was granted. 23. On 2 March 2001, by an interim decision, the Assize Court dismissed the request for its withdrawal. Having examined the relevant case-law on the issue it found that no ground had been established for its withdrawal. In this connection it noted that : “no reasonable person who had actual knowledge of the circumstances of the case from genuine sources – as opposed to plain rumours or the manner in which the matter had been presented in the media – would justifiably form the impression that there was a real likelihood of prejudice by the court against the defendant simply because of its conclusion that his lawyer ’ s behaviour, at some stage of the proceedings, had been in contempt of court”. 24. Given that its decision on contempt had been a decision reached within the context of its exercise of its judicial functions and, as such, there was no issue of personal feelings of the judges or any prejudice on the part of the court, there was no reason why the court should abandon the examination of the case before the completion of the trial. 25. The proceedings therefore continued before the same bench. 26. On 10 May 2001 the Assize Court found the applicant guilty of manslaughter and robbery. The court dismissed the applicant ’ s allegations that his confession had been fabricated by the police and taken under suspicious circumstances. It found that there had been clear, independent and persuasive evidence demonstrating the genuine nature of his confession to the police. Furthermore, it noted that apart from the free and voluntary confession, the conclusion about the applicant ’ s guilt was supported by other strong and independent evidence and facts. In particular, the court relied on the applicant ’ s further statement of 9 May 2000 (see paragraph 11 above), placing the applicant at the time and place of the crime and confirming that he used force against the victim, a statement of a friend of the applicant to whom the applicant had stated that he had been involved in a serious fight with the victim, and various testimonies confirming that the applicant had been seen in a pub drinking and talking to the victim, leaving the pub right after the victim and heading in the same direction as the victim. Moreover, further testimonies confirmed that the applicant was seen in the early hours of the following morning drinking in another pub dressed in clothes covered in mud. The medical evidence concerning the victim ’ s death had confirmed that the cause of death had been multiple and violent blows, a finding which was consistent with the applicant ’ s two statements as well as that of his co-accused. The confession of his co-accused could not be treated as evidence against the applicant. 27. On 24 May 2001 the Assize Court sentenced the applicant to two concurrent sentences of imprisonment for fourteen and six years for manslaughter and robbery respectively. C. Appeal proceedings before the Supreme Court 28. On 29 May 2001 the applicant lodged an appeal with the Supreme Court against his conviction and sentence. 29. In challenging his conviction he repeated his arguments concerning the involuntary nature of his confession, the circumstances in which it had been taken and the violation of his right to the assistance of a lawyer. In particular, it was emphasised that the Director of Police had not advised the applicant himself that he should consult a lawyer and had not warned the applicant that he was under no obligation to state anything about the case. Moreover, the applicant maintained that his conviction had been the direct consequence of the hostility which had been openly expressed by the Assize Court towards his lawyer, who had also been tried, convicted by the same court for contempt and imprisoned. As a result, the applicant ’ s confidence in the impartiality of the court and his lawyer had been shaken. 30. The prosecution also lodged an appeal challenging the sentence imposed as “manifestly insufficient” in the circumstances. 31. On 3 July 2003 the Supreme Court dismissed both appeals. 32. As to what had occurred at the pre-trial stages of the proceedings the Supreme Court noted that the applicant had gone to the police station accompanied by his father and both had been informed about the crime, the suspicion that the applicant had been involved in it and that they could be assisted by a lawyer if they so wished. The applicant had stated that he was innocent; he had then been arrested and taken for questioning in a different room. When his son had been taken for questioning the applicant ’ s father had been warned about the seriousness of the case, that they could consult a lawyer and that he could be present during the questioning. However, he had preferred to wait outside. A few minutes later the applicant ’ s father and the Police Director had been informed that the applicant had confessed his guilt. The court observed that the fact that the applicant had confessed did not necessarily lead to the conclusion that something improper had occurred. 33. As to the applicant ’ s confession, the court noted that it had constituted the subject of a separate hearing within the trial and that the Assize Court had concluded that it had been the product of the free will of the applicant and found it admissible as evidence. The court observed that the Assize Court, following settled principles of Cypriot jurisprudence, had re-examined the content of the statement in the light of the entirety of the evidence in the main trial. Its judgment was elaborate and the evidential material was discussed with meticulousness together with the arguments of the parties. A simple reading of the minutes confirmed the correctness of the Assize Court ’ s judgment. As for the applicant ’ s credibility, the Supreme Court noted that: “as a general comment, ... the appellant appeared, as it is shown by the evidence, to have had a selective memory. He remembered all the details which did not incriminate him while he had complete lack of memory in respect of all the elements which linked him to the crime. This attitude is evident from his evidence both in the main trial and in the trial within a trial concerning the voluntariness of the contested statement. And in both proceedings he tried to negate the statements he had made in his earlier written confession .” 34. Moreover, there was sufficient, powerful and independent evidence putting the applicant at the time and place of the crime. Such evidence taken together with the applicant ’ s admission contained in a second statement, the admissibility of which was not contested as having been submitted on an involuntary basis, rendered the applicant ’ s guilt proven beyond any reasonable doubt. 35. The Supreme Court also dismissed the applicant ’ s argument concerning the Assize Court ’ s alleged lack of impartiality in view of his lawyer ’ s conviction for contempt of court. In particular it stated the following: “ Following his conviction by the Assize Court (for contempt of court) Mr Kyprianou requested to withdraw from the proceedings and to stop acting as counsel for the appellant .... The appellant ’ s argument that, in view of what had happened before the Assize Court, this ceased to be an impartial court and the trial was rendered unfair, is incorrect. A simple reading of the voluminous transcript of the proceedings demonstrates the smooth conduct of the trial, in which all the evidence was presented before the court, which had to evaluate it and decide the extent to which the prosecution had managed to prove the charges against the appellant beyond all reasonable doubt. We have indicated above that the evidence against the appellant was conclusive. His advocate had put to the Assize Court everything that could be submitted in his defence in a trial; a task which was, admittedly, rather difficult. The Assize Court ’ s decision not to allow the advocate to withdraw in the middle of the trial or to withdraw itself from the case, which would have led to a retrial, did not render the trial unfair, while the court itself had, in our opinion, preserved its impartiality throughout the proceedings.” 36. Finally, as regards the sentence imposed by the Assize Court, the Supreme Court found that there had been evident leniency in sentencing, making the length of the prison sentence imposed almost manifestly insufficient. Nevertheless, it decided not to interfere with the Assize Court ’ s decision in this respect. 37. Concerning the Mr Kyprianou ’ s request to stop acting as counsel for the applicant (see paragraphs 18 and 35 above), the Government clarified that it was made before the contempt proceedings. This was supported by the applicant and the relevant transcript of the proceedings. | This case concerned in particular the failure to inform the applicant, who was a minor, of his right to consult a lawyer prior to first police questioning. |
469 | Preliminary ruling | I. THE CIRCUMSTANCES OF THE CASE 7. The applicant was born in 1968 and lives in Apeldoorn. 8. In a judgment of 29 October 2008, the Zutphen Regional Court ( rechtbank ) convicted the applicant of the transportation of 2, 800 grams of heroin and of seven counts of people trafficking ( mensensmokkel ) as defined in Article 197a of the Criminal Code ( Wetboek van Strafrecht ), committed jointly with other perpetrators. It sentenced him to a partially suspended term of 40 months ’ imprisonment. 9. Both the applicant and the prosecution appealed against the Regional Court ’ s judgment. 10. On 19 July 2011 the Arnhem Court of Appeal ( gerechtshof ) gave its judgment, upholding the conviction for the offence of transporting heroin and also of four counts of people trafficking, and acquitting him on the three other counts. It sentenced him to 40 months ’ imprisonment less the time spent in pre-trial detention. Based on the evidence submitted, the Court of Appeal found established that the applicant and his co-perpetrators had, for purposes of financial gain, between 10 November 2006 and 17 January 2007 facilitated the unauthorised residence of a total of 20 Iraqi migrants in the Netherlands, Germany and Denmark. 11. The applicant lodged an appeal in cassation ( cassatie ), the scope of which is limited to procedural conformity and points of law, with the Supreme Court ( Hoge Raad ). In his written grounds of appeal of 8 August 2013, the applicant raised, inter alia, a complaint regarding the four counts of people trafficking of which he had been convicted by the Court of Appeal. The applicant contended that the Court of Appeal had convicted him of facilitation of unauthorised “residence”, as defined in Article 197a § 2 of the Criminal Code, whereas the evidence relied on by the Court of Appeal to uphold that conviction did not prove that the Iraqi migrants had had “residence” in the Netherlands, Germany or Denmark. Instead, the evidence demonstrated that the applicant had organised and financed the Iraqi migrants ’ transportation to Denmark via the Netherlands and Germany, which had been intercepted on each occasion in Germany. As the migrants ’ stay in the Netherlands and Germany had only been brief and transitory, and given that they had never even entered Denmark, there was, according to the applicant, no proof of “residence” in those countries. In that regard, the applicant referred to European Union law, namely Council Directive 2002/90/EG of 28 November 2002 defining the facilitation of unauthorised entry, transit and residence (hereinafter “the Directive”) and Council Framework Decision 2002/946/JBZ of 28 November 2002 on the strengthening of the penal framework to prevent the facilitation of unauthorised entry, transit and residence (hereinafter “the Framework Decision”). Submitting that Article 197a of the Criminal Code had been amended in order to implement the Directive, the applicant argued that the notion of the facilitation of unauthorised “residence” within the meaning of Article 197a § 2 should be understood as entailing a long-term stay, to be distinguished from “transit” or “entry” as defined in the first paragraph of Article 197a, which had been added to Article 197a when the Directive was implemented. The applicant ’ s grounds of appeal in cassation did not include a request that the Supreme Court put a question to the CJEU for the purpose of obtaining a preliminary ruling. 12. In his advisory opinion of 10 December 2013, the Advocate General ( advocaat-generaal ) to the Supreme Court expressed his view that the applicant ’ s appeal should be dismissed with the exception of the first of the grounds of the appeal, which pertained to the length of the proceedings: the duration of the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention, for which a reduction of sentence was to be applied. With regard to the applicant ’ s complaint that the evidence did not show that there had been any “residence” of the migrants in the countries at issue, the Advocate General was of the opinion that Article 197a § 2 of the Criminal Code called for a broad interpretation of “residence”, as had been the case prior to the implementation of the Directive and the Framework Decision. Since that implementation was intended to broaden the scope of Article 197a of the Criminal Code, the second paragraph of that provision retained its broad meaning of “residence”, thereby encompassing “transit”. The separate penalisation in the first paragraph of Article 197a of the facilitation of unauthorised “transit and entry” did not change the broad scope of paragraph 2. The Advocate General thus concluded that the applicant ’ s complaint in this matter should be dismissed. 13. On 24 December 2013, the applicant submitted written comments in reply to the Advocate General ’ s advisory opinion ( a so-called “Borgers letter” [1] ) in which he made a tentative request for questions to be referred to the CJEU for a preliminary ruling about the interpretation of “residence”, “entry” and “transit” within the context of the Directive and whether the Directive contained minimum rules or constituted a general framework of terms, if the Supreme Court were to concur with the Advocate General. 14. On 4 March 2014 the Supreme Court gave its judgment, which read: “[the applicant ’ s counsel ] have submitted written grounds of appeal. That document is annexed to this judgment, of which it is a component part. The Advocate General [ ... ] has advised that the impugned judgment be quashed − but only as regards the prison sentence imposed, reducing it due to the violation of the right to adjudication within a reasonable time − and that the remainder of the appeal be dismissed. Counsel [for the applicant] have submitted a written reply. ” 15. The Supreme Court went on to hold that the applicant ’ s complaint that the cassation proceedings had exceeded a reasonable time within the meaning of Article 6 § 1 of the Convention was well-founded and that the sentence imposed on the applicant should be reduced as a consequence thereof. The Supreme Court further considered: “ 4. Assessment of the remaining grievances The grievances cannot lead to cassation [of the impugned judgment] ( de middelen kunnen niet to cassatie leiden ). Based on section 81 (1) of the Judiciary (Organisation) Act ( Wet op de rechterlijke organisatie ), this requires no further reasoning as the grievances do not give rise to the need for a determination of legal issues in the interests of legal uniformity or legal development. ” 16. The Supreme Court thus quashed the Court of Appeal ’ s judgment as regards the imposed sentence, reduced the sentence to 34 months ’ imprisonment, and dismissed the remainder of the grounds of appeal. No further appeal lay against the Supreme Court ’ s judgment. | The applicant, who was convicted in 2011 of transporting heroin and of people trafficking, complained about the Supreme Court’s refusal to refer his request for a preliminary ruling to the Court of Justice of the European Union (CJEU), and alleged that insufficient reasons had been given for that decision. |
916 | Tribunal established by law | 2. The applicant was born in 1970 and lives in Rzeplin. He was represented by Mr M. Pietrzak and Ms M. Mączka-Pacholak, lawyers practising in Warsaw. 3. The Government were represented by their Agent, Mr J. Sobczak, of the Ministry of Foreign Affairs. 4. The facts of the case may be summarised as follows. Background and context of the case 5. The broader domestic background to the present case was set out in the Grand Chamber judgment in the case of Grzęda v. Poland ([GC], no. 43572/18, §§ 14-28, 15 March 2022). Termination of the applicant’s term of office as a judicial member of the NCJ 6. In 1997 the applicant passed a judicial exam and was subsequently appointed as judge of the Cracow-Śródmieście District Court. On 19 January 2005 he was appointed as judge of the Cracow Regional Court. The applicant was also selected to be the spokesperson of the Regional Court. 7. In 2001 the applicant joined the Polish Judges’ Association Iustitia. For some time, he served on its board and acted as its spokesperson. Since 2010 the applicant has been a member of the Judges’ Association Themis. 8. On 15 March 2010 the applicant was elected by the Representatives of the General Assemblies of the Regional Court judges as a member of the National Council of the Judiciary ( Krajowa Rada Sądownictwa – “the NCJ”) for a four-year term. On 21 March 2010 he took up his duties in the NCJ. 9. The NCJ is a constitutional organ tasked with safeguarding the independence of courts and judges (see Article 186 § 1 of the Constitution). One of its principal functions is to evaluate and nominate candidates for appointment to judicial office for every level and type of court. The candidates proposed by the NCJ are submitted to the President of the Republic for appointment. The NCJ’s composition is prescribed in Article 187 § 1 of the Constitution. 10. On 2 March 2014 the applicant was again elected as a member of the NCJ for another four-year term. This term began on 21 March 2014 and was due to come to an end on 21 March 2018. 11. On 6 March 2014 the applicant was appointed by the NCJ as its spokesperson. In this capacity, he frequently commented in the media on topical issues concerning the judiciary and participated in numerous debates on legal matters in various media. The applicant took an active part in legislative work and participated in meetings of parliamentary committees, mainly the Justice and Human Rights Committee of the Sejm (the lower house of the Polish Parliament). 12. Starting in the autumn of 2015, after the parliamentary elections won by the Law and Justice party, public debate on matters concerning the functioning of the administration of justice intensified. 13. In November 2015 the government took a number of factual and legal measures in respect of the Constitutional Court. In December 2015 the Sejm elected three judges of the Constitutional Court (M.M., L.M. and H.C.) to seats that had been already filled (for a detailed account of the relevant facts, see Xero Flor w Polsce sp. z o.o. v. Poland, no. 4907/18, §§ 4-63, 7 May 2021). These measures were criticised by various legal bodies and institutions. The NCJ adopted opinions critically assessing successive bills on the Constitutional Court. The applicant, in his capacity as the NCJ’s spokesperson, actively participated in the public debate regarding the Constitutional Court. 14. In January 2017 the Government announced plans for a large-scale judicial reform of the NCJ, the Supreme Court and the ordinary courts. The Minister of Justice explained that a comprehensive reform was needed in order to, inter alia, increase the efficiency of the administration of justice and make the election of NCJ members more democratic. 15. In the first half of 2017 a billboard campaign “Just courts” ( Sprawiedliwe sądy ), presenting examples of alleged unethical or illegal activities of several judges, was launched across the country. It turned out later that it was organised by a foundation controlled by the Government and financed from public funds. According to the applicant, this campaign was aimed at undermining trust in judges and preparing the public for the forthcoming changes in the functioning of the courts. 16. On 14 March 2017 the Government introduced in the Sejm a bill, drafted by the Ministry of Justice, to amend the Act of 12 May 2011 on the National Council of the Judiciary ( ustawa z 12 maja 2011 r. o Krajowej Radzie Sądownictwa; “the 2011 Act on the NCJ”). The bill proposed that the judicial members of the NCJ would be elected by the Sejm instead of by judicial assemblies and that the term of office of the sitting judicial members would be terminated. Two further bills concerning the Supreme Court and the Organisation of Ordinary Courts were introduced by deputies from the majority. 17. The bill amending the Act on the NCJ was critically assessed by the NCJ, the Supreme Administrative Court, the National Bar Association, the Commissioner for Human Rights and the Office for Democratic Institutions and Human Rights (ODIHR) of the Organization for Security and Cooperation in Europe (OSCE), in their respective opinions of 30 and 31 January, 5 and 12 April and 5 May 2017. The opinions stated that the proposed amendments violated the Constitution in that they allowed the legislature to take control of the NCJ in contradiction with the principle of the separation of powers. According to the same opinions, the amendments would also result in the unconstitutional termination of the constitutionally prescribed four-year term of office of the judicial members of the NCJ. 18. On 11 April 2017 the Prosecutor General, who is at the same time the Minister of Justice, according to the Act on the Public Prosecutor’s Office of 28 January 2016, which merged these two offices, lodged an application with the Constitutional Court, challenging the constitutionality of certain provisions of the 2011 Act on the NCJ. The Prosecutor General alleged that as regards the election of judges to the NCJ the impugned provisions treated different groups of judges unequally depending on the level of jurisdiction, resulting in unequal representation of judges on the NCJ. He further challenged the provisions regulating the term of office of the elected judicial members of the NCJ, claiming that to treat their terms of office as individual in nature was contrary to the Constitution. 19. The Constitutional Court gave judgment on 20 June 2017 (no. K 5/17), its bench being composed of Judges M.W., G.J., L.M., M.M. (the rapporteur) and J.P. 20. In its general observations, the Constitutional Court noted that the NCJ was a constitutional body tasked with protecting the independence of courts and judges. It also noted that the NCJ was not a judicial authority, and thus the constitutional standards relevant for courts and tribunals were not applicable to the NCJ. Nor should the NCJ be regarded as part of judicial self ‑ governance. The hybrid composition of the Council made it an organ which ensured a balance and cooperation between the different powers of government. 21. The Constitutional Court held that the provisions governing the procedure for electing members of the NCJ from among judges of the ordinary courts and of administrative courts [1] were incompatible with Article 187 § 1 (2) and § 4 in conjunction with Article 32 of the Constitution. The impugned provisions introduced an unjustified differentiation with regard to the election of judges to the NCJ from the respective levels of the ordinary and administrative courts and did not provide equal opportunities to stand for election to the NCJ. The Constitutional Court found that the impugned provisions treated unequally judges of district and regional courts in comparison with judges of courts of appeal, as well as judges of district courts in comparison with judges of the regional courts. The same was true for judges of the regional administrative courts in comparison with judges of the Supreme Administrative Court. 22. Secondly, the Constitutional Court held that section 13(3) of the 2011 Act on the NCJ, interpreted in the sense that the term of office of members of the NCJ elected from among judges of ordinary courts was individual in character, was incompatible with Article 187 § 3 of the Constitution. It noted that there had been an established interpretation by the NCJ that the term of office of judges elected as members of the NCJ was to be individually calculated for each of those members. However, the Constitutional Court disagreed with that interpretation on the ground that it was contrary to the linguistic, systemic and functional interpretation of Article 187 § 3 of the Constitution. It noted that that provision used the phrase “term of office” in the singular and related it to the phrase “elected members of the NCJ” in the plural. Accordingly, this meant that all elected members of the NCJ had a concurrent or joint term of office and this applied equally to judges, deputies and senators. To individualise the term of office for judicial members of the NCJ would result in an unjustified differentiation in status between judicial members on the one hand, and deputies and senators, on the other, all being categories of elected member of the Council. The Constitutional Court found that the correct interpretation of Article 187 § 3 of the Constitution required that the term of office of all elected members of the NCJ be of a joint character. 23. With regard to the election of judicial members of the NCJ, the Constitutional Court held, in so far as relevant: “The Constitutional Court in the current composition does not agree with the [Constitutional Court’s] position adopted in the judgment [of 18 July 2007,] no. K 25/07 that the Constitution specifies that [judicial] members of the NCJ shall be elected by judges. Article 187 § 1 (2) of the Constitution only stipulates that these persons [judicial members of the NCJ] are elected from among judges. The Constitution did not specify who should elect those judges. Thus, it follows from the Constitution who can be elected as a member of the NCJ, but it is not specified how to elect judicial members of the Council. These matters were delegated to statutory regulation. There is no obstacle to the election of judges to the NCJ by judges. However, one cannot agree with the assertion that the right to elect [judicial members of the NCJ] is vested solely with assemblies of judges. While Article 187 § 1 (3) of the Constitution clearly indicates that deputies are elected to the NCJ by the Sejm and senators by the Senate, there are no constitutional guidelines in respect of judicial members of the NCJ. This means that the Constitution does not determine who may elect judges to the NCJ. For this reason, it should be noted that this question may be differently regulated within the limits of legislative discretion.” 24. The Constitutional Court noted with regard to the principle of tenure that an elected judicial member of the NCJ was legally protected from removal; however, that protection was not absolute. It agreed with the position previously expressed by the Constitutional Court (judgment of 18 July 2007, no. K 25/07) that a breach of tenure could only be justified by extraordinary, constitutionally valid reasons. The Constitutional Court found that the Constitution did not lay down the principle of tenure for the NCJ. The fact that the majority of the NCJ’s members were elected for a four-year term of office did not result in the Council being a tenured body. The tenure was linked not with the body as such, but with certain categories of members composing it. However, the Constitutional Court noted that the guarantee of a four-year tenure for elected members of the NCJ was not absolute. The Constitution, having regard to Article 187 § 4 thereof, allowed statutory exceptions to the four-year tenure. 25. In July 2017 the enactment by Parliament of the three bills referred to above (see paragraph 16 above) sparked widespread public protests. On 31 July 2017 the President of the Republic vetoed the Act amending the Act on the NCJ and the Act on the Supreme Court. The Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts was signed and entered into force. This law conferred on the Minister of Justice competence to dismiss and appoint at his discretion presidents and vice-presidents of ordinary courts during the period of six months following the law’s entry into force. 26. On 26 September 2017 the President of the Republic introduced in the Sejm his own bill amending the Act on the NCJ. 27. In the explanatory report it was noted that the bill granted the public, as well as judges, the right to nominate candidates to sit on the Council. The bill referred to the finding made in the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17) that the issue of how judicial members of the NCJ were to be elected was left to statutory regulation. In accordance with the bill, the final election from among the nominated candidates was to be carried out by the Sejm by a qualified majority of three-fifths of the votes. If election by qualified majority proved impossible, a supplementary election by means of a roll-call vote was to be carried out. 28. One of the aims of the bill was to depart from the principle whereby the members of the Council selected from among judges had individual terms of office. The explanatory report noted that the Constitutional Court had found this approach (individual terms) to be contrary to the Polish Constitution in the judgment of 20 June 2017, no. K 5/17. The bill provided that the judicial members of the NCJ were to be elected for a joint term of office. It further proposed that the terms of office of the NCJ’s judicial members elected under the previous provisions be terminated. This was considered by the President to be proportionate to the systemic changes being pursued. The explanatory report noted that the major changes to the method for electing members of the NCJ were an expression of the “democratisation” of the election process and constituted a development of the principle of the rule of law. This “democratisation” was an important public interest and justified shortening the term of office of the NCJ members currently serving. 29. The President’s bill was assessed negatively by the National Bar Association, the Supreme Court, the NCJ, the Commissioner for Human Rights and the National Council of Attorneys at Law in their respective opinions of 17, 23, 31 October and 12 November 2017. 30. The Act of 8 December 2017 Amending the Act on the National Council of the Judiciary ( ustawa z dnia 8 grudnia 2017 o zmianie ustawy o Krajowej Radzie Sądownictwa oraz niektórych innych ustaw – “the 2017 Amending Act”) was enacted by the Sejm and the Senate (the upper house of Parliament) on 8 and 15 December 2017 respectively. It was signed by the President of the Republic on 20 December 2017 and entered into force on 17 January 2018. 31. The 2017 Amending Act transferred to the Sejm the competence to elect judicial members of the NCJ (section 9a(1)). It provided in section 9a(3) that the joint term of office of new members of the NCJ was to begin on the day following that of their election. Section 6 of the 2017 Amending Act provided that the terms of office of the judicial members of the NCJ elected on the basis of the previous provisions would continue until the day preceding the beginning of the term of office of the new members of the NCJ. 32. Eighteen judges, out of about ten thousand, decided to stand for election to the new NCJ. None of the sitting members decided to stand. A candidate for election to the new NCJ had to be supported either by a group of 2,000 citizens or by 25 fellow judges. 33. On 6 March 2018 the Sejm elected, in a single vote, fifteen judges as new members of the NCJ by a three-fifths majority. On the same date, the applicant’s term of office as member of the NCJ was terminated ex lege pursuant to section 6 of the 2017 Amending Act. As a result of that measure the applicant ceased to act as the NCJ’s spokesperson. 34. Thirteen of the new judicial members of the NCJ were district court judges (first level of the ordinary courts), one was a regional court judge (second level of the ordinary courts) and one was a regional administrative court judge. There were no representatives of the courts of appeal, the Supreme Court or the military courts. 35. The applicant remains in office as a judge of the Cracow Regional Court. 36. On 17 September 2018 the General Assembly of the European Network of Councils for the Judiciary (“the ENCJ”) suspended the NCJ’s membership of the Network. The decision was motivated by the General Assembly’s view that the new NCJ was no longer independent from the legislative and executive powers. On 28 October 2021 the General Assembly of the ENCJ expelled the NCJ from the Network. 37. On 2 November 2018 the NCJ, in its new composition, lodged an application with the Constitutional Court challenging several provisions of the 2011 Act on the NCJ (as amended in December 2017), inter alia, section 9a governing the new manner of electing the judicial members of the Council and the nature of their term of office. On 14 February 2019 a group of senators lodged an identical application. The Constitutional Court decided to examine the two applications jointly as case no. K 12/18. The Commissioner for Human Rights requested that the Constitutional Court discontinue the proceedings as inadmissible since the new NCJ was seeking to confirm the constitutionality of the law. 38. On 25 March 2019 the Constitutional Court gave judgment in the case. The bench was composed of Judges J.P. (the president), G.J., Z.J., J.Pi. (the rapporteur) and A.Z. Judge J.Pi. had been elected as judge of the Constitutional Court following the death of Judge L.M., one of the judges elected in December 2015 to a seat that had already been filled. The judgment was given after hearings held in camera on 14 and 25 March 2019. 39. The Constitutional Court held that section 9a of the 2011 Act on the NCJ (as amended), granting to the Sejm the competence to elect judicial members of the NCJ and providing that the joint term of office of new members of the NCJ would begin on the day following the date of their election, was compatible with Articles 187 § 1 (2) and § 4 in conjunction with Articles 2, 10 § 1 and 173 as well as with Article 186 § 1 of the Constitution. It essentially relied on the reasoning of the Constitutional Court’s judgment of 20 June 2017 (no. K 5/17). Selected public statements of the applicant in his capacity as NCJ spokesperson 40. The applicant publicly commented in various fora on the government’s legislative proposals regarding the Constitutional Court, the NCJ, the Supreme Court and the ordinary courts. In his capacity as the NCJ’s spokesperson, he pointed to threats to the rule of law and judicial independence stemming from the Government’s proposals. The relevant period began in December 2015, marked by grave irregularities in the election of judges to the Constitutional Court and ended on 6 March 2018, when the applicant’s term of office as a judicial member of the NCJ was terminated. In the public debate, the applicant was, together with the First President of the Supreme Court, Ms Małgorzata Gersdorf and presidents of the two associations of judges (Themis and Iustitia), one of the main critics of the changes concerning the judiciary initiated by the government. 41. On 6 May 2016, in relation to the proposed amendment to the Act on the NCJ, the applicant stated in an interview with the Rzeczpospolita newspaper: “The judges are to be appointed to the NCJ and not elected [by their peers] as at present. We will contest this project. The Constitution clearly speaks of full four years. However, the Minister argues that the terms of office end and begin unevenly, and he wants them to end and begin at the same time. If the Constitutional Court decides that the termination of positions [at the NCJ] is constitutional, I will recognise it. The NCJ must tackle the legislative and executive branches. ... The role of the NCJ is to give us [judges] guarantees that we will not be influenced by politicians. ... A strong Council which respects the Constitution is a thorn in every politician’s side.” 42. On 3 June 2016 the applicant published an article on the Internet portal dziennik.pl entitled “Is this about taking over the Supreme Court?” in reply to an article “Second shock therapy. For courts” published earlier on the same portal. He stated, inter alia, as follows: “Unfortunately, in my opinion, it is no coincidence that a text which strongly criticises the NCJ, a constitutional body upholding the independence of courts and judges, appeared at the same time as the Government’s draft amendment to the Act on the NCJ was released. Unfortunately, this draft contains several solutions which are incompatible with the Constitution. Shortening the constitutional term of office of judicial members of the Council, the obligation to submit two candidates for judges to the President ... – these provisions are intended to weaken the Council. And as soon as possible. ... Justice reforms must be introduced in an evolutionary and well thought-out way. The author apparently finds fault with the NCJ. Because there is a need for it. ... Maybe it’s preparation for ‘taking over’ the Supreme Court? It would be enough to adapt the Hungarian model and already half of [judges of] the Supreme Court will retire. Then, in order to fill it with your people, you need to have a docile NCJ full of people willing to be promoted. Perhaps this is what the present battle is really about? ... You cannot prepare a huge reform without discussing it with the judges of the higher courts, with a global view of the complexity of the system and the procedures. It is necessary to calculate and foresee the consequences. The ministerial team is doing all this without any consultations with the NCJ, forgetting that the judicial members on the current council were elected by an overwhelming majority of delegates from all courts, including district ones. And they have the legitimacy to be consulted on such important bills. And the Minister of Justice – a member of the NCJ – has not appeared at the Council’s meetings for a long time. When he was asked what the plans were, he replied: very fundamental. That is all. But that’s why he’s a member of the NCJ, which is a platform for debate ... That is what the legislature intended. ...” 43. On 13 September 2016 the applicant was interviewed by the portal natemat.pl. The text was entitled “The judges will not be defeated by power”. He stated, inter alia : “The authorities are using the problems of the judiciary as a pretext to dismantle the justice system – says Waldemar Żurek, spokesman for the NCJ. Q: First Law and Justice party, despite protests from Europe and the opposition, started to dismantle the Constitutional Court, now J. Kaczyński says it is necessary to deal with the Supreme Court. How do you assess these events? A: This is a campaign of the authorities against the judiciary. Recently, judges met at the Extraordinary Congress of Polish Judges. We hoped for the presence of representatives of the legislative and executive powers, but they did not accept the invitation. After the congress, the attacks on the judiciary by the authorities intensified. ... Q: The ruling party says judges are privileged. A: Judicial independence is not a privilege. It protects judges from [political] party pressures. It gives them independence, so they are not like weathercocks. It allows them to be guided solely by the law and not by the interests of one [political] party or another. Judicial immunity is a safeguard for the State when the legislative and executive branches break the law. And as far as judges are concerned, we are one of the few professions where disciplinary proceedings are public. Q: Law and Justice is dismantling the Constitutional Court, now it’s taking on the Supreme Court. When will it be the turn of the NCJ? A: There is a bill pending in the Sejm which dismantles the NCJ. It is supposed to terminate only the terms of office of judicial members of the NCJ. Surprisingly, this termination does not apply to the terms of office of politicians, who are also members of the Council. This is reminiscent of the Hungarian scenario in which Orbán changed the retirement age for judges so that they would leave office earlier.” 44. The applicant presented the opinions of the NCJ on its official YouTube channel. On 31 January 2017 he commented on the NCJ’s opinion of 30 January 2017 on the Government’s bill amending the 2011 Act on the NCJ. He stated, inter alia, as follows: “Today I would like to tell you about the bills concerning the judiciary. The bills have been widely discussed, presented by the Minister of Justice in the media and submitted to the NCJ for its opinion. These are fundamental bills, which may lead to a change in the system, to a change in the system of the separation of powers. I would like to tell you about several fundamental flaws of these bills, which in the opinion of the NCJ are contrary to the Constitution. First of all, the fact that the judges – this judicial part in the NCJ, because, as we know, the Council consists of politicians: senators, deputies to the Sejm, the Minister of Justice, the President’s representative, [and] a dozen or so judges elected by the judges. Here, in this bill, there is a fundamental change to this solution. Today it is politicians who will be able to elect all the judges – members of the National Council – and they have a fundamental influence on who becomes a judge in Poland, who is promoted to a higher level [of the judiciary]. The Council is also the guardian of judicial independence, the guardian of the independence of a given court. So if politicians take over the Council, because there will always be people in this group of judges who will listen to their orders, then the courts will become politicised. A judge who will have to reckon with pressure from a politician, if a special chamber is also set up at the Supreme Court that can remove him or her disciplinarily - well, unfortunately he or she will be subjected to serious pressure... The Minister also wants to extinguish the term of office of the judicial members of the NCJ. Despite the fact that the Constitution speaks of a four-year term, the Minister wants to do this by an ordinary law, so clearly [there will be] a direct violation of the Constitution. ...” 45. On 2 March 2017 the Internet portal dziennik.pl published the article “Judge Waldemar Żurek: we are not afraid, we will not be intimidated or bought” which reported on the applicant’s statements in the television programme “Dot over the i”. “The application is purely PR-like. It is an artillery preparation to destroy the Supreme Court. ‘We have all seen it in the case of the Constitutional Court, and we can see it in the case of the NCJ’, the NCJ spokesman said in ‘Dot over the i’, commenting on the application of fifty Law and Justice deputies to the Constitutional Court to examine the resolution on appointing Małgorzata Gersdorf, the First President of the Supreme Court. In his view, the media favourable to the authorities would slander her personally and try to destroy her authority. Ms Gersdorf was on the side of the separation of powers, so she needs to be slandered. ... Waldemar Żurek in turn assured that despite this pressure the judicial community will not give up. You become a judge for difficult times, because it is easy to give even the most difficult judgments when there is no political pressure, when there is no violation of the Constitution. ‘We are just at the threshold of destroying the rule of law and the separation of powers’, he said. ‘I may be dismissed from my job, but I will not break my oath as a judge’, he concluded.” 46. On 7 March 2017 the applicant was interviewed by the editor-in-chief of Newsweek Polska. “Q: You are no longer a spokesperson for the NCJ, but a spokesperson for saving the independence of Polish courts. A: I did not expect that every statement in defence of the law would be perceived as political. The NCJ spokesman reminds us that the role of a judge is to warn when something bad is happening, which is how he perceives the current situation around the judiciary. ... Q: Do you collect text messages? A: I started because I see how the Internet works. I get messages and it hurts me the most when they say: ‘you Stalinist bastard, secret police bastard or bandit in a robe’. My phone number is public. The institution’s spokesman must reach out to the media and the public. ...” 47. On 21 June 2017 the applicant commented, on the TVN24 television news channel, about the judgment of the Constitutional Court of 20 June 2017 (see paragraphs 19-24 above): “The Constitutional Court has given a judgment on the provisions of the 2011 Act on the NCJ regarding the rules for the election of judges to the NCJ, declaring them unconstitutional. The ruling of the Constitutional Court will allow the politicians of the Law and Justice Party to introduce changes in the judiciary leading, among others, to the termination of the terms of office of judges – current members of the NCJ. – First, we have to ask whether it was really a judgment – said Waldemar Żurek when asked to comment on the judgment. The doctrine of law says that if a constitutional body includes a person who is not entitled to adjudicate, then we are dealing with a non-existent judgment – he stressed. Waldemar Żurek was also asked about changes in the judiciary introduced by the Law and Justice party. – I do not want to use the word ‘reform’, because in my opinion it is a deconstruction of the legal system. It will lead to the politicisation of the courts, to a complete take-over of the courts by politics. We have not yet had such a situation since we regained independence – he said.” Audit by the CBA of the applicant’s financial declarations 48. The applicant submitted that the authorities had become interested in him since his increased involvement, in his capacity as the NCJ’s spokesperson, in the debate concerning judicial reforms and related threats to the independence of the judiciary. 49. The Government stated that in 2016 the unit of the Central Anti ‑ corruption Bureau ( Centralne Biuro Antykorupcyjne – “the CBA”) responsible for auditing financial declarations submitted by judges had carried out a systematic examination of those declarations. As a result of that examination, a number of judges, including the applicant, had been subjected to advanced scrutiny due to irregularities in their declarations. The CBA initiated an inspection of the applicant’s assets and financial declarations ( oświadczenia majątkowe ). 50. It appears that on an unspecified date in November 2016 the CBA’s Department of Oversight Procedures requested the President of the Cracow Court of Appeal to provide copies of the applicant’s financial declarations for the period 2010-2015 as well as information about the length of his service and posts occupied by him. The requested information was provided to the CBA on 1 December 2016. 51. In a letter of 15 December 2016 the President of the Cracow Court of Appeal informed the applicant about the CBA’s request. 52. In connection with the above-mentioned letter, on 23 December 2016 the applicant requested the CBA to inform him whether the audit procedure carried out by the Bureau was of a routine nature or related to any proceedings concerning him. He wished to know the legal and factual basis for the CBA’s actions, noting that he was a sitting judge and member of the NCJ, a constitutional body. 53. In a letter of an unspecified date in January or February 2017, the Deputy Director of the CBA’s Department of Oversight Procedures requested the President of the Cracow Regional Court to promptly transmit the applicant’s financial declaration for the year 2016. He referred in that letter to “the routine activities of the CBA’s Department of Oversight Procedures and analytical actions” in respect of the applicant. 54. On 16 February 2017 the applicant asked that Department for information as to when the CBA had begun its above-mentioned activities. He further requested information on who had ordered the CBA’s activities in his case, whether there were any internal procedures setting time-limits for termination of such activities and when the activities concerning him were expected to end. 55. The applicant has submitted copies of media reports from 12 April 2017 in which the CBA’s spokesperson stated that since the end of November of 2016 it had been analysing his financial declarations and that as a result of this the CBA’s officers had commenced an audit of his declarations. 56. On 18 April 2017 the applicant’s lawyer, in connection with earlier telephone communications, informed the Warsaw Branch of the CBA by letter and facsimile that the applicant was ready to appear before it when summoned. However, due to his professional obligations he would not be available before 27 April 2017. Should the CBA consider his appearance necessary, the applicant’s lawyer requested that a formal summons indicating the legal basis and the procedure to be followed be addressed to him. 57. On 19 April 2017 the CBA officers entered the NCJ’s premises in order to serve on the applicant a decision authorising the audit of his financial declarations. The decision dated 13 April 2017 stated that three CBA officers were authorised by the Head of the CBA to carry out the audit of the applicant’s financial declarations on the basis of section 13(1)(2) of the Act on the CBA. The audit concerned the accuracy and veracity of his financial declarations made in the years 2012-2017. The audit was to commence on 19 April 2017 and end three months later. It appears that it was subsequently prolonged until January 2018. 58. At the same time the tax authorities began a fiscal audit in respect of the applicant, the CBA extended its audit to his wife and the prosecution service questioned the applicant’s parents. The applicant submitted that the audit of his wife’s financial situation had been carried out at the time when she was in advanced pregnancy, thus having a negative effect on her health and causing her serious stress. The applicant’s elderly parents had been distressed in connection with their questioning. 59. On 11 May 2017 the President of the NCJ addressed letters to the Prime Minister and the Chairman of the Sejm Committee on Secret Services requesting an explanation as to the appropriateness of the actions taken by the CBA officers on 19 April 2017 at the NCJ’s seat. Those letters remained unanswered. 60. In connection with the media reports concerning the auditing of the applicant’s financial declaration, on 2 May 2017 the Panoptykon Foundation asked the CBA to disclose, inter alia, how many such audits were carried out in 2017 and the practice as to the place of service of authorisations to carry out such audits, pursuant to the Act on Access to Public Information. On 16 May 2017 the CBA replied that in 2017 it had carried out 37 audits of the accuracy of financial declarations. As regards the question about the practice, the CBA stated that they had not kept statistics regarding the place of service of the authorisation; however, it indicated that audits often commenced at the place of work or service of the person concerned. 61. On 9 August 2017 the applicant’s lawyer notified the CBA’s Department of Oversight Procedures that the applicant had still not received a reply to his letter of 16 February 2017. Furthermore, on a few occasions the applicant was summoned to the CBA in order to provide explanations despite the fact that he had informed it about his holidays and his professional obligations as a judge and member of the NCJ. Lastly, the applicant expressed serious doubts as to whether the CBA’s officers had appropriately exercised their statutory competences in view of the failure to provide him with the requested information, the performance of procedural acts without taking account of his availability and numerous statements to the media on the subject-matter of the pending proceedings. 62. On 29 December 2017 the applicant and his wife were notified by the CBA, pursuant to section 23(9) of the CBA Act, that the Warsaw Regional Court had authorised the CBA to obtain information and data concerning them from nearly 300 banks and financial institutions in Poland. 63. It appears that at the end of 2017 the CBA officers visited the applicant’s accountant in her office, asking for information about the applicant’s tax returns. The applicant submitted that according to his accountant, such a visit was very surprising and unusual. The officers questioned the accountant in an informal manner and did not draw up a record of this questioning. 64. The applicant further submitted that during the audit proceedings carried out by the CBA in his case, it had taken numerous other extraordinary measures. For example, its officers had personally questioned a man residing in south-east Poland who had bought a tractor from the applicant many years earlier. They had also investigated a purchase of land in a rural town in south ‑ east Poland where the applicant owned his holiday home. That purchase had taken place twenty-two years prior to the CBA audit. 65. The applicant submitted that in 2017 and 2018 he had been questioned on several occasions by CBA officers and had provided written statements. On 12 January 2018 the applicant’s lawyer was served with an audit report ( protokół kontroli ) prepared by the CBA. He made certain objections to it, which were not upheld by the CBA. The applicant refused to sign the report. In a press interview he stated that he had refused to do so because he contested the grounds for the audit and its length. 66. The Government submitted that the results of the audit, based on official documents received from Government bodies as well as from financial institutions, constituted the basis for a report concerning the established irregularities that had been submitted to the Cracow Regional Prosecutor’s Office for the purpose of criminal law assessment. 67. The applicant maintained that he had not been informed about any further actions taken by the CBA after the audit report had been prepared in his case. According to the media reports and statements of the CBA press unit, in April 2018 the audit report was transmitted to the Cracow Regional Prosecutor’s Office. The applicant maintained that the report was not a criminal complaint, but had been submitted in order to be forwarded to the competent tax authority. In his view, the report should have been directly transmitted to the tax authority. The applicant had never been informed about any investigation by a prosecutor into his financial or tax affairs. 68. The Government submitted that audit activities consisting in the collection of statements had also been carried out in relation to other persons from the applicant’s social and professional circle; however, they had not taken the form of interrogations but voluntary statements of knowledge about the applicant’s property matters. The officers had verified the data that the applicant and his wife had included in their financial declarations and therefore the competent authorities and national financial institutions had been contacted during the audit. It was a standard procedure resulting from the purpose of the audit. 69. The applicant was also summoned to appear a few times before the prosecution service, which is answerable to the Minister of Justice – Prosecutor General; however, he was not informed of his status in that connection. Inspection of the applicant’s work ordered by the Ministry of Justice 70. The applicant submitted a copy of an anonymous letter addressed to the Minister of Justice and received on 28 April 2017. The letter stated, inter alia : “Dear Minister, I am keeping my fingers crossed for the reform you are implementing! I am wholeheartedly behind you and those who work with you. We need to put in order in Poland all those ... anti-development interest groups. ... ... I am outraged by the attitude and the aggressive statements of this judge [the applicant], all the more so because he is the face of the ‘extraordinary caste’. I am very curious to know how Judge Żurek’s involvement in the fight against you affects his primary duty, which is to judge. I am curious whether he really spends as much time in the courtroom as his fellow judges. How can he reasonably pass fair judgments on behalf of the Republic of Poland if he spends more time at the TVN [private TV channel] than reading files. As a taxpayer I would like to know how much time Judge Żurek spends in court on substantive work and adjudication, and how much time he spends doing politics. ... ... I think you need to know, Minister, that there are rumours in Cracow that it is practically impossible to meet Judge Żurek in the courtroom, and that the reasons [for his judgments] are written for him by his assistants, of which he apparently has two! Please check it.” 71. On 29 April 2017, one day after it had received the letter, the Ministry of Justice sent a request for information to the Vice-President of the Cracow Court of Appeal “in connection with the information received on 28 April 2017 about irregularities in performing judicial duties by Judge Waldemar Żurek in the Cracow Regional Court”. The Ministry wished to be informed whether the applicant had decided cases in accordance with the established schedule and whether there were complaints about the efficiency of proceedings in his cases. It also asked for statistical information on the number of sessions conducted by the applicant (hearings and in camera sessions), and the number of cases assigned to and terminated by him against the average in his division in the years 2015-2017. 72. The Ministry further inquired whether the applicant had used the support of legal assistants and what had been the rules for assigning assistants to him and to other judges of the Cracow Regional Court. It transmitted a copy of the letter of 28 April 2017. 73. On 11 May 2017 the President of the Cracow Court of Appeal informed the Ministry of Justice that he had verified the performance of judicial duties by the applicant in the light of elements indicated by the Ministry. He also established that there had been no complaints regarding the efficiency of proceedings in the applicant’s cases. On that basis, he determined that “there were no alleged irregularities in the performance of judicial duties by Judge Waldemar Żurek in the Cracow Regional Court”. 74. The President of the Cracow Court of Appeal further stated that the work of the Cracow Regional Court was subject to on-going supervision of the President of that court. Such supervision was also carried out by the Head of the Division in which the applicant worked. That supervision had not provided any grounds for initiating supervisory measures with regard to the applicant. 75. The President of the Cracow Court of Appeal also expressed doubts about the basis for taking actions to verify the alleged irregularities in the performance of judicial duties by the applicant. He noted that, leaving aside the fact that the basis for such actions had been an anonymous letter whose content was offensive to the judges, the impugned letter had not given rise to doubts as to the existence of alleged irregularities. 76. On 13 May 2017 the Ministry asked the President of the Cracow Court of Appeal to provide supplementary information about the applicant’s assistants and the statistical data as requested before. 77. On 19 May 2017 the President of the Cracow Court of Appeal informed the Ministry about the support of a legal assistant allocated to the applicant and the rules applicable in this respect at the Cracow Regional Court. He further replied that it was not possible to provide the statistical data on the applicant’s workload in comparison to the average workload of other judges of that court as there was no comparative group of judges performing their judicial duties to the same extent as the applicant. Applicant’s dismissal from his position as spokesperson of the Cracow Regional Court 78. In November 2017 the Minister of Justice dismissed Judge B.M. from her post as President of the Cracow Regional Court. This decision was taken on the basis of the Act of 12 July 2017 amending the Act on the Organisation of Ordinary Courts, which conferred on the Minister competence to dismiss and appoint at his discretion presidents of ordinary courts during the period of six months following the law’s entry into force (see paragraph 25 above; for more details, see also Broda and Bojara v. Poland, nos. 26691/18 and 27367/18, § 33, 29 June 2021; in this judgment the Court found that the applicants, two court vice-presidents, had been deprived of the right of access to a court, in violation of Article 6 § 1, in relation to the Minister’s decisions removing them from their posts before the expiry of their respective terms of office pursuant to the above-mentioned Act of 12 July 2017). On 9 January 2018 the Minister of Justice appointed Ms D.P.-W. as new President of the Cracow Regional Court on the basis of the same transitional provisions. On 6 March 2018 the Sejm elected Ms D.P.-W. as one of the judicial members of the new NCJ. 79. By a letter dated 15 January 2018 the President of the Cracow Regional Court informed the applicant that she had dismissed him from the position of spokesperson of that court, after obtaining a favourable opinion of the Board ( Kolegium ) of the Cracow Regional Court. 80. The applicant submitted that during the meeting of the Board on 15 January 2018 its members had not given an opinion on his dismissal from the position of spokesperson of that court. At the end of the meeting, the President of the Cracow Regional Court had informally notified the members of the Board that she was considering dismissing the applicant from that position, and only one member of the Board, Judge J.K. objected to the dismissal; none of the other members of the Board expressed their view on that matter. Although the request for an opinion on the applicant’s dismissal had not been included in the Board’s agenda or put to a vote on that day, the information that the Board had given a favourable opinion was included in the minutes of the Board’s meeting. Those events, among others, were later the basis of a lawsuit brought by the applicant against the Cracow Regional Court for breach of the principle of equal treatment in employment. The case is pending before the Katowice Regional Court (case no. IX P 63/19). 81. On 18 January 2018, the new spokesperson of the Cracow Regional Court published a press release on the court’s website stating that the President of the Cracow Regional Court had dismissed the applicant from the position of spokesperson after obtaining a favourable opinion of the Board. In the applicant’s view, this press release was published in order to inform the public that his work had allegedly been negatively assessed by a larger group of judges. 82. On 22 January 2018 the members of the Board requested the President of the Cracow Regional Court to call a meeting of the Board on 29 January 2018. The President of the Cracow Regional Court did not react to this request. 83. On 29 January 2018, six out of eight members of the Board of the Cracow Regional Court resigned from their seats on the Board. On 30 January 2018 they published a statement explaining that their decision had been motivated by the lack of possibility of further cooperation with the President of the Cracow Regional Court, acting by law as Chairperson of the Board. They noted that it had not been appropriate to state in the minutes of the Board’s meeting of 15 January 2018 that the Board had given a favourable opinion as regards the applicant’s dismissal from the position of spokesperson of the court. Further, it had not been appropriate to state in the minutes that the Board had given its consent to the applicant’s dismissal, since the Board could only have given an opinion on this matter. In addition, this matter had not been put to a vote. 84. On 26 February 2018 the Assembly of Judges of the Cracow Regional Court adopted a resolution which read, in so far as relevant: “1. The Assembly ... expresses its thanks to Judge Waldemar Żurek of the Cracow Regional Court for his many years of service as spokesperson of the Cracow Regional Court, as well as member and at the same time spokesperson of the NCJ. Judge Waldemar Żurek consistently and at the same time professionally defended the independence of the courts and judges, which – at a time when the executive and legislative authorities, violating the principles arising from the Constitution, took a number of actions with a view to subordinating the judiciary to the political considerations – was an extremely difficult and courageous act. Quoting the Chapter of the Golden Paragraphs Award granted to Judge Waldemar Żurek in 2016, he was ‘always there, where it was necessary to defend the foundations of the democratic rule-of-law State’. The fully dedicated and committed attitude of Judge Waldemar Żurek has made him ‘the face of the Polish judiciary’, deserving the highest respect and recognition. 2. The Assembly ... draws attention to the fact that in relation to Judge Waldemar Żurek the law enforcement agencies subordinated to the political actors for about two years, and recently also the newly appointed President of the [Regional] Court, have taken repressive actions manifesting themselves in, among other things: – five interrogations by the prosecutor’s office and the CBA in the course of unfounded proceedings concerning the auditing of [the applicant’s] financial declaration[s], which have in fact already lasted almost one and a half years, while, contrary to the law, the proceedings have been conducted for six months without formal initiation and without informing him about this fact; – unlawful intrusion of the CBA officers into the restricted area of the seat of a constitutional organ of the Republic of Poland, i.e. the NCJ, in order to serve a summons [on the applicant], which could also have been served by post; – questioning, having features of harassment, of the seventy-plus-year-old parents of Judge Waldemar Żurek; – the officers of the CBA pestering without justification some neighbours of Judge Waldemar Żurek or the person who administers his taxes; – the smear campaign in the public media against Judge Waldemar Żurek, which has resulted in a wave of hate speech directed at him in the form of numerous telephone calls and texts, including threats; – unjustified auditing of the financial situation of Judge Waldemar Żurek’s wife, who is currently six months pregnant; – the inspection of cases examined by Judge Waldemar Żurek ordered by the Minister of Justice on the basis of an anonymous letter; – the dismissal, having features of harassment, of Judge Waldemar Żurek from the position of court spokesperson, despite the absence of the requisite opinion of the court’s Board, and then the harassment of one of the persons who opposed this type of operation – Judge E. Ł., who was dismissed from the position of President of the Wieliczka District Court; – attempts to persuade persons cooperating with Judge Waldemar Żurek to make negative statements about his work. Taking into account the timing and context of the actions against [the applicant] described above, it is fully justified to conclude that they are aimed at pressuring and intimidating him in connection with his activities defending the independence of the courts and judges. These actions, which we all consider groundless and unlawful, recall the persecution of political opponents by the authorities during the Polish People’s Republic. The above-described actions are reminiscent of the systems of control of citizens and individual repression used by the secret services in authoritarian systems, which led to many violations of human rights in the past. The Assembly strongly condemns this type of action taken against a judge, who is at the same time a member and spokesperson of a constitutional organ of the Republic of Poland, namely the NCJ.” Declassification of the applicant’s financial declaration 85. On 17 May 2018 the applicant requested the President of the Cracow Court of Appeal to grant his financial declaration, which was otherwise to be made public on the Internet, confidential status. He invoked concerns for his and his family’s safety owing to threats received by email and telephone. On 24 May 2018 the President of the Court of Appeal granted the applicant’s request. On 16 June 2018 the Minister of Justice, without providing any reasons, reversed the decision of the President of the Court of Appeal and decided to declassify the financial declaration of the applicant. The Minister’s decision was not amenable to any review. Pending disciplinary proceedings against the applicant 86. In order to present comprehensive information about his current situation, the applicant submitted that at least five sets of disciplinary proceedings had been initiated against him. Two of those sets of proceedings are pending before the Disciplinary Court at the Katowice Court of Appeal and the remaining ones are pending before the Disciplinary Chamber of the Supreme Court. 87. In the first case pending before the Disciplinary Court at the Katowice Court of Appeal (no. ASD 1/19) the applicant was charged on 2 March 2019 with the disciplinary offence of undermining the dignity of the office of judge in that he had refused to perform judicial duties in the period from 1 September to 15 October 2018 in the I Civil Division (first-instance division) of the Cracow Regional Court. The applicant had been transferred to that Division against his will by the President of the Cracow Regional Court, Ms D.P.-W. on 27 August 2018. In his submission, this transfer from the appeals division hearing civil cases at second instance to the first-instance division constituted an additional repressive measure against him. On 10 September 2018 the applicant lodged an appeal against that decision. In the proceedings initiated by his appeal, the Supreme Court made a reference for preliminary ruling to the CJEU. The latter delivered its judgment on 6 October 2021 (C ‑ 487/19, EU:C:2021:798; see Advance Pharma sp. z o.o. v. Poland, no. 1469/20, §§ 144-149 and 216, 3 February 2022). 88. In the second case pending before the Disciplinary Court at the Katowice Court of Appeal (no. ASD 4/19) the applicant was charged on 21 October 2019 with the same disciplinary offence in that he had delivered a political manifesto in a press interview where he had stated his views on the functioning of the constitutional organs of the State, namely the Constitutional Court and the new NCJ and also questioned the legality of K.Z.’s appointment to the post of judge of the Supreme Court. 89. On 22 November 2018 Judge M.L., the Deputy Disciplinary Officer for Ordinary Court Judges ( Zastępca Rzecznika Dyscyplinarnego Sędziów Sądów Powszechnych ) charged the applicant with two disciplinary offences. The first charge concerned the applicant’s failure to file a sales tax return on the sale of a John Deere 440 Skider tractor and the second one related to the failure to pay tax on civil-law transactions concerning the sale of the tractor. These proceedings appear to be the consequence of the auditing by the CBA of the applicant’s financial declarations. 90. On 28 May 2020 Judge P.W.R., the Deputy Disciplinary Officer for Ordinary Court Judges charged the applicant with the disciplinary offence of undermining the dignity of the office of judge by, inter alia, challenging the effectiveness of K.Z.’s appointment to the post of judge of the Supreme Court and questioning his status as the acting First President of the Supreme Court. This set of disciplinary proceedings constituted a reaction to the lawsuit brought by the applicant before the Supreme Court’s Chamber of Labour and Social Security in which he had been seeking to establish the non-existence of the official status of K.Z., who had been appointed as a Supreme Court judge with the participation of the new NCJ. In those proceedings the Supreme Court decided to submit a request for a preliminary ruling to the CJEU. A more detailed description of the appointment procedure concerning Judge K.Z. can be found in the Court’s judgment in Advance Pharma sp. z o.o v. Poland, no. 1469/20, of 3 February 2022, in which the Court held that the judicial formation of the Civil Chamber of the Supreme Court including Judge K.Z. was not a “tribunal established by law” within the meaning of Article 6 § 1 of the Convention and that it lacked the independence and impartiality required by this provision (see §§ 26-27, 34-35, 44-52, 93 and 349-353). Other material 91. In 2019 Amnesty International published a report entitled “Poland: Free Courts, Free People. Judges Standing for Their Independence”. The report contained the following passage: “3. Impact on judges ... In the early stages of the ‘reform’ of the judiciary, the authorities and pro-government media targeted a small number of individual judges who publicly spoke out against it. Waldemar Żurek, a judge of the Regional Court in Cracow who was an NCJ spokesperson until March 2018, had suffered several years of intimidation and harassment. Serving as the spokesperson of the NCJ, Judge Żurek has voiced public criticism via the media since 2016 when the government first attempted to interfere with the independence of the judiciary by targeting the Constitutional Tribunal. In response, various authorities subjected Judge Żurek and his family members to investigations and disciplinary proceedings. Judge Żurek was also targeted by a negative campaign by pro-government media, including national television [footnote omitted], during which he received hate mail and abusive and threatening text messages [footnote omitted]. For several months in 2016 and 2017, the Central Anticorruption Bureau (CBA) carried out an investigation of Judge Żurek’s finances. The Assembly of Judges of the Regional Court in Cracow raised concerns over procedural irregularities in the investigation as it ‘has been pursued without a formal decision and without a proper announcement for a period of [the first] 6 months [footnote omitted]’. Judge Żurek reported intrusions by CBA officials into his home and office [footnote omitted]. The CBA investigation eventually concluded in January 2018 that Judge Żurek was not involved in any major breaches of the law beyond inconsistent reporting on per diem received. Judge Żurek also faced several disciplinary proceedings, including an investigation for his participation in July 2017 protests in defence of the independence of the judiciary. In 2017, the pro-government newspaper Gazeta Polska called for such proceedings after Judge Żurek spoke at a protest on 16 July 2017 in Warsaw. However, the disciplinary prosecutor at the Appeal Court in Cracow concluded in August 2017 that there were no grounds for such a move [footnote omitted].” 92. In 2020 judges from the Polish Judges’ Association Iustitia and a prosecutor from the Lex Super Omnia Association of Prosecutors published a report entitled “Justice Under Pressure”. The report stated, in so far as relevant: “29. Waldemar ŻUREK – Judge of the Regional Court in Cracow Judge Waldemar Żurek was a member of the NCJ for two terms of office, and until March 2018 he was a spokesman for the Council. The Judge is a member of the board of the ‘Themis’ Association of Judges and has repeatedly spoken in public debate on the state of the rule of law in Poland, and in his statements he has always boldly defended the independence of the courts, the independence of judges and the principles of a democratic State under the rule of law, openly criticising the unconstitutional changes introduced in the area of justice by those currently in power. In January 2018, Judge Waldemar Żurek was dismissed from the position of [spokesperson] of the Regional Court in Kraków. In July 2018, Judge Waldemar Żurek was transferred from the 2nd Civil Appeal Division to the 1st Civil Division (1st instance), which was criticised by the Association of Judges ‘Themis’ and the Association of Polish Judges ‘Iustitia’, which described this decision as politically motivated harassment of this judge and as an attempt to intimidate judges who openly act against actions aimed at political subordination to justice. Judge Waldemar Żurek took part in meetings with citizens, where current changes concerning the justice system, including the independence of courts and the independence of judges, were discussed. Judge Waldemar Zurek’s civic activity was met with the reaction of the disciplinary prosecutor, who, among other things, began to scrutinise the professional work of the judge in order to find a reason to initiate disciplinary proceedings.” | The applicant in this case, a judge, was also spokesperson for the National Council of the Judiciary (NCJ), the constitutional body in Poland which safeguards the independence of courts and judges. In that capacity, he had been one of the main critics of the changes to the judiciary initiated by the legislative and executive branches of the new Government which came to power in 2015. The case concerned his removal from the NCJ. He alleged in particular that he had been denied access to a tribunal and that there had been no procedure, judicial or otherwise, to contest the premature termination of his mandate. He further submitted that his dismissal as spokesperson for the regional court, combined with the authorities’ decisions to audit his financial declarations and to inspect his judicial work, had been intended to punish him for expressing criticism of the Government’s legislative changes and to warn other judges off of doing the same. |
474 | Freedom of expression and electronic commerce | I. THE CIRCUMSTANCES OF THE CASE 10. The applicant company is a public limited liability company ( aktsiaselts ), registered in Estonia. A. Background to the case 11. The applicant company is the owner of Delfi, an Internet news portal that published up to 330 news articles a day at the time of the lodging of the application. Delfi is one of the largest news portals on the Internet in Estonia. It publishes news in Estonian and Russian in Estonia, and also operates in Latvia and Lithuania. 12. At the material time, at the end of the body of the news articles there were the words “ add your comment ” and fields for comments, the commenter ’ s name and his or her e-mail address (optional). Below these fields there were buttons labelled “ publish the comment ” and “ read comments ”. The part for reading comments left by others was a separate area which could be accessed by clicking on the “ read comments ” button. The comments were uploaded automatically and were, as such, not edited or moderated by the applicant company. The articles received about 10,000 readers ’ comments daily, the majority posted under pseudonyms. 13. Nevertheless, there was a system of notice-and-take-down in place: any reader could mark a comment as leim (Estonian for an insulting or mocking message or a message inciting hatred on the Internet) and the comment was removed expeditiously. Furthermore, comments that included certain stems of obscene words were automatically deleted. In addition, a victim of a defamatory comment could directly notify the applicant company, in which case the comment was removed immediately. 14. The applicant company had made efforts to advise users that the comments did not reflect its own opinion and that the authors of comments were responsible for their content. On Delfi ’ s website there were Rules on posting comments which included the following. “ The Delfi message board is a technical medium allowing users to publish comments. Delfi does not edit the comments. An author of a comment is liable for his or her comment. It is worth noting that there have been cases in the Estonian courts where authors have been punished for the contents of a comment ... Delfi prohibits comments whose content does not comply with good practice. These are comments that – contain threats; – contain insults; – incite hostility and violence; – incite illegal activities ... – contain off-topic links, spam or advertisements; – are without substance and/or off topic; – contain obscene expressions and vulgarities ... Delfi reserves the right to remove such comments and restrict their authors ’ access to the writing of comments ... ” The functioning of the notice-and-take-down system was also explained in the Rules on posting comments. 15. The Government submitted that in Estonia Delfi had a notorious history of publishing defamatory and degrading comments. Thus, on 22 September 2005 the weekly newspaper Eesti Ekspress had published an open letter from its editorial board to the Minister of Justice, the Chief Public Prosecutor and the Chancellor of Justice in which concern was expressed about the incessant taunting of people on public websites in Estonia. Delfi was named as a source of brutal and arrogant mockery. The addressees of the public letter responded to it in the 29 September 2005 edition of Eesti Ekspress. The Minister of Justice emphasised that the insulted persons had the right to defend their honour and reputation in court by bringing a suit against Delfi and claiming damages. The Chief Public Prosecutor referred to the legal grounds which made threats, incitement to social hatred, and sexual abuse of minors punishable under criminal law, and noted that liability for defamation and insults was dealt with under civil procedure. The Chancellor of Justice referred to the legal provisions designed to ensure freedom of expression as well as the protection of everyone ’ s honour and good name, including sections 1043 and 1046 of the Obligations Act ( Võlaõigusseadus ). B. Article and comments published on the Internet news portal 16. On 24 January 2006 the applicant company published an article on the Delfi portal under the heading “ SLK Destroyed Planned Ice Road ”. Ice roads are public roads over the frozen sea which are open between the Estonian mainland and some islands in winter. The abbreviation “ SLK ” stands for AS Saaremaa Laevakompanii (Saaremaa Shipping Company, a public limited liability company). SLK provides a public ferry transport service between the mainland and certain islands. At the material time, L. was a member of the supervisory board of SLK and the company ’ s sole or majority shareholder. 17. On 24 and 25 January 2006 the article attracted 185 comments. About twenty of them contained personal threats and offensive language directed at L. 18. On 9 March 2006 L. ’ s lawyers requested the applicant company to remove the offensive comments and claimed 500,000 Estonian kroons (EEK) (approximately 32,000 euros (EUR)) in compensation for non-pecuniary damage. The request concerned the following twenty comments. “ 1. ( 1) there are currents in [V]äinameri (2) open water is closer to the places you referred to, and the ice is thinner. Proposal – let ’ s do the same as in 1905, let ’ s go to [K]uressaare with sticks and put [L.] and [Le.] in a bag 2. bloody shitheads... they ’re loaded anyway thanks to that monopoly and State subsidies and have now started to worry that cars may drive to the islands for a couple of days without anything filling their purses. burn in your own ship, sick Jew! 3. good that [La. ’ s] initiative has not broken down the lines of the web flamers. go ahead, guys, [L.] into the oven! 4. [ little L.] go and drown yourself 5. aha ... [I] hardly believe that that happened by accident... assholes fck 6. rascal !!! [ in Russian] 7. What are you whining for, knock this bastard down once and for all[ .] In future the other ones ... will know what they risk, even they will only have one little life. 8. ... is goddamn right. Lynching, to warn the other [islanders] and would-be men. Then nothing like that will be done again! In any event, [L.] very much deserves that, doesn ’ t he. 9. “ a good man lives a long time, a shitty man a day or two ” 10. If there was an ice road, [one] could easily save 500 for a full car, fckng [L.] pay for that economy, why does it take 3 [hours] for your ferries if they are such good icebreakers, go and break ice in Pärnu port ... instead, fcking monkey, I will cross [the strait] anyway and if I drown, it ’ s your fault 11. and can ’ t anyone stand up to these shits? 12. inhabitants of Saaremaa and Hiiumaa islands, do 1:0 to this dope. 13. wonder whether [L.] won ’ t be knocked down in Saaremaa? screwing one ’ s own folk like that. 14. The people will chatter for a couple of days on the Internet, but the crooks (and also those who are backed and whom we ourselves have elected to represent us) pocket the money and pay no attention to this flaming – no one gives a shit about this. Once [M.] and other big crooks also used to boss around, but their greed struck back (RIP). Will also strike back for these crooks sooner or later. As they sow, so shall they reap, but they should nevertheless be contained (by lynching as the State is powerless towards them – it is really them who govern the State), because they only live for today. Tomorrow, the flood. 15. this [V.] will one day get hit with a cake by me. damn, as soon as you put a cauldron on the fire and there is smoke rising from the chimney of the sauna, the crows from Saaremaa are there – thinking that ... a pig is going to be slaughtered. no way 16. bastards !!!! Ofelia also has an ice class, so this is no excuse why Ola was required!!! 17. Estonian State, led by scum [and] financed by scum, of course does not prevent or punish antisocial acts by scum. But well, every [L.] has his Michaelmas ... and this cannot at all be compared to a ram ’ s Michaelmas. [1] Actually feel sorry for [L.] – he’s a human, after all ... :D :D :D 18. ... if after such acts [L.] should all of a sudden happen to be on sick leave and also next time the ice road is destroyed ... will he [then] dare to act like a pig for the third time? :) 19. fucking bastard, that [L.]... could have gone home with my baby soon ... anyway his company cannot guarantee a normal ferry service and the prices are such that ... real creep ... a question arises whose pockets and mouths he has filled up with money so that he ’ s acting like a pig from year to year 20. you can ’ t make bread from shit; and paper and internet can stand everything; and just for my own fun (really the State and [L.] do not care about the people ’ s opinion) ... just for fun, with no greed for money – I pee into [L. ’ s] ear and then I also shit onto his head. :) ” 19. On the same day, that is about six weeks after their publication, the offensive comments were removed by the applicant company. 20. On 23 March 2006 the applicant company responded to the request from L. ’ s lawyers. It informed L. that the comments had been removed under the notice-and-take-down obligation, and refused the claim for damages. C. Civil proceedings against the applicant company 21. On 13 April 2006 L. brought a civil suit in the Harju County Court against the applicant company. 22. At the hearing of 28 May 2007, the representatives of the applicant company submitted, inter alia, that in cases like that concerning the “ Bronze Night ” (disturbances of public order related to the relocation of the Bronze Soldier monument in April 2007) Delfi had removed between 5,000 and 10,000 comments per day, on its own initiative. 23. By a judgment of 25 June 2007, L. ’ s claim was dismissed. The County Court found that the applicant company ’ s liability was excluded under the Information Society Services Act ( Infoühiskonna teenuse seadus ), which was based on Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market ( Directive on electronic commerce ). The court considered that the comments section on the applicant company ’ s news portal was to be distinguished from its journalistic section. The administration of the former by the applicant company was essentially of a mechanical and passive nature. The applicant company could not be considered the publisher of the comments, nor did it have any obligation to monitor them. 24. On 22 October 2007 the Tallinn Court of Appeal allowed an appeal by L. It considered that the County Court had erred in finding that the applicant company ’ s liability was excluded under the Information Society Services Act. The County Court ’ s judgment was quashed and the case was referred back to the first-instance court for fresh consideration. 25. On 21 January 2008 the Supreme Court declined to hear an appeal by the applicant company. 26. On 27 June 2008 the Harju County Court, having re-examined the case, found for L. In accordance with the Court of Appeal ’ s instructions, it relied on the Obligations Act and deemed the Information Society Services Act inapplicable. It observed that the applicant company had indicated on its website that comments were not edited, that the posting of comments that were contrary to good practice was prohibited, and that the applicant company reserved the right to remove such comments. A system was put in place whereby users could notify the applicant company of any inappropriate comments. However, the County Court considered that this was insufficient and did not allow adequate protection for the personality rights of others. The court found that the applicant company itself was to be considered the publisher of the comments, and it could not avoid responsibility by publishing a disclaimer stating that it was not liable for the content of the comments. 27. The County Court found that the news article itself published on the Delfi news portal was a balanced one. A number of comments, however, were vulgar in form; they were humiliating and defamatory, and impaired L. ’ s honour, dignity and reputation. The comments went beyond justified criticism and amounted to simple insults. The court concluded that freedom of expression did not extend to protection of the comments concerned and that L. ’ s personality rights had been violated. L. was awarded EEK 5,000 (EUR 320) in compensation for non-pecuniary damage. 28. On 16 December 2008 the Tallinn Court of Appeal upheld the County Court ’ s judgment. It emphasised that the applicant company had not been required to exercise prior control over comments posted on its news portal. However, having chosen not to do so, it should have created some other effective system which would have ensured rapid removal of unlawful comments. The Court of Appeal considered that the measures taken by the applicant company were insufficient and that it was contrary to the principle of good faith to place the burden of monitoring the comments on their potential victims. 29. The Court of Appeal rejected the applicant company ’ s argument that its liability was excluded under the Information Society Services Act. It noted that the applicant company was not a technical intermediary in respect of the comments, and that its activity was not of a merely technical, automatic and passive nature; instead, it invited users to post comments. Thus, the applicant company was a provider of content services rather than of technical services. 30. On 10 June 2009 the Supreme Court dismissed an appeal by the applicant company. It upheld the Court of Appeal ’ s judgment in substance, but partly modified its reasoning. 31. The Supreme Court held as follows. “ 10. The Chamber finds that the allegations set out in the appeal do not serve as a basis for reversing the judgment of the Court of Appeal. The conclusion reached in the Court of Appeal ’ s judgment is correct, but the legal reasoning of the judgment must be amended and supplemented on the basis of Article 692 § 2 of the Code of Civil Procedure. 11. The parties do not dispute the following circumstances: (a) on 24 January 2006 the defendant ’ s Internet portal ‘ Delfi ’ published an article entitled ‘ SLK Destroyed Planned Ice Road ’; (b) the defendant provided visitors to the Internet portal with the opportunity to comment on articles; (c) of the comments published [ avaldatud [2] ] on the aforementioned article, twenty contain content which is derogatory towards the plaintiff [L.]; (d) the defendant removed the derogatory comments after the plaintiff ’ s letter of 9 March 2006. 12. The legal dispute between the parties relates to whether the defendant as an entrepreneur is the publisher within the meaning of the Obligations Act, whether what was published (the content of comments) is unlawful, and whether the defendant is liable for the publication of comments with unlawful content. 13. The Chamber agrees with the conclusion of the Court of Appeal that the defendant does not fall within the circumstances precluding liability as specified in section 10 of the ISSA [Information Society Services Act]. According to section 2(6) of the Technical Regulations and Standards Act, an information society service is a service specified in section 2(1) of the ISSA. According to this provision, ‘ information society services ’ are services provided in the form of economic or professional activities at the direct request of a recipient of the services, without the parties being simultaneously present at the same location, and such services involve the processing, storage or transmission of data by electronic means intended for the digital processing and storage of data. Hence, important conditions for the provision of information society services are that the services are provided without the physical presence of the parties, the data are transmitted by electronic means, and the service is provided for a fee on the basis of a request by the user of the service. Sections 8 to 11 of the ISSA establish the liability of providers of different information society services. Section 10 of the ISSA states that where a service is provided that consists of the storage of information provided by a recipient of the service, the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: ( a ) the provider does not have actual knowledge of the contents of the information and, as regards claims for damages, is not aware of any facts or circumstances indicating any illegal activity or information; ( b ) the provider, upon having knowledge or becoming aware of the aforementioned facts, acts expeditiously to remove or to disable access to the information. Hence, the provision in question is applied in the event that the service provided consists in storing data on [the service provider ’ s] server and enabling users to have access to these data. Subject to the conditions specified in section 10 of the ISSA, the provider of such a service is exempted from liability for the content of information stored by it, because the provider of the service merely fulfils the role of an intermediary within the meaning of the provision referred to, and does not initiate or modify the information. Since the Information Society Services Act is based on Directive 200 0 /31/EC of the European Parliament and of the Council on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (Directive on electronic commerce), the principles and objectives of that Directive must also be taken into account in the interpretation of the provisions of the Act in question. Articles 12 to 15 of the Directive, which form the basis for sections 8 to 11 of the ISSA, are complemented by Recital 42 of the preamble to the Directive, according to which the exemptions from liability established in Articles 12 to 15 cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored. Hence, the providers of so-called ‘ content services ’ who have control over the content of the information stored cannot rely on the exemptions specified in Articles 12 to 15 of the Directive. The Chamber shares the opinion of the Court of Appeal that the activities of the defendant in publishing the comments are not merely of a technical, automatic and passive nature. The objective of the defendant is not merely the provision of an intermediary service. The defendant has integrated the comments section into its news portal, inviting visitors to the website to complement the news with their own judgments [ hinnangud ] and opinions (comments). In the comments section, the defendant actively calls for comments on the news items appearing on the portal. The number of visits to the defendant ’ s portal depends on the number of comments; the revenue earned from advertisements published on the portal, in turn, depends on the [number of visits]. Thus, the defendant has an economic interest in the posting of comments. The fact that the defendant is not the author of the comments does not mean that the defendant has no control over the comments section. The defendant sets out the rules for the comments section and makes changes to it (removes a comment) if those rules are breached. By contrast, a user of the defendant ’ s service cannot change or delete a comment he or she has posted. He or she can only report an inappropriate comment. Thus, the defendant can determine which of the comments added will be published and which will not be published. The fact that the defendant does not make use of this possibility does not lead to the conclusion that the publishing of comments is not under the defendant ’ s control. The Chamber agrees with the opinion of the Court of Appeal that the defendant, which governs the information stored in the comments section, provides a content service, for which reason the circumstances precluding liability, as specified in section 10 of the ISSA, do not apply in the present case. 14. It is not disputed that the defendant is the publisher of an article entitled ‘ SLK Destroyed Planned Ice Road ’, published on the Delfi Internet portal on 24 January 2006. The County Court also found that the defendant must be regarded as the publisher of the comments. The Court of Appeal, agreeing with that opinion, noted that the fact that the defendant relied on a violation of its right to freedom of expression showed that it considered itself – and not the authors of the comments – to be the publisher of the comments. In the opinion of the Chamber, in the present case both the defendant and the authors of the comments are the publishers of the comments within the meaning of the Obligations Act. The plaintiff has the right to choose against whom to bring the suit. The suit has only been brought against the defendant [Delfi]. The Chamber has explained the definitions of “ disclosure ” and “ discloser ” in paragraph 24 of its judgment of 21 December 2005 in civil case no. 3-2-1-95-05, finding that for the purposes of section 1047 of the Obligations Act, disclosure [ avaldamine ] means communication of information to third parties and the discloser is a person who communicates the information to third parties. In addition, the Chamber explained that in the case of publication [ avaldamine ] of information in the media, the discloser/publisher [ avaldaja ] can be a media company as well as the person who transmitted the information to the media publication. Publishing of news and comments on an Internet portal is also a journalistic activity [ ajakirjanduslik tegevus ]. At the same time, because of the nature of Internet media [ internetiajakirjandus ], it cannot reasonably be required of a portal operator to edit comments before publishing them in the same manner as applies for a printed media publication [ trükiajakirjanduse väljaanne ]. While the publisher [ ( väljaandja ) of a printed media publication] is, through editing, the initiator of the publication of a comment, on the Internet portal the initiator of publication is the author of the comment, who makes it accessible to the general public through the portal. Therefore, the portal operator is not the person to whom information is disclosed. Because of [their] economic interest in the publication of comments, both a publisher [ väljaandja ] of printed media and an Internet portal operator are publishers/disclosers [ avaldajad ] as entrepreneurs. In cases concerning a value judgment [ väärtushinnang ] that prejudices and denigrates a person ’ s honour and good name, in determining the definition of publication/disclosure and publisher/discloser it is irrelevant whether the value judgment is derived from the published/disclosed information or is derogatory because of its substantive meaning ... Hence, publication/disclosure is communication to third parties of a value judgment on a person (section 1046(1) of the Obligations Act) and/or of information which allows a value judgment to be made, and a publisher/discloser is a person who communicates such judgments [ hinnangud ] and information to third parties. In the present case the comments have been made accessible to an unlimited number of persons (the general public). 15. In reply to the allegations in the defendant ’ s appeal to the effect that the Court of Appeal wrongly applied Article 45 of the Constitution since, in justifying the interference with freedom of expression, it relied on the principle of good faith, and not the law, and that the removal of a comment from the portal is an interference with the freedom of expression of the person posting the comment, the Chamber explains the following. The exercise of any fundamental right is restricted by Article 19 § 2 of the Constitution, which provides that everyone must honour and consider the rights and freedoms of others, and must observe the law in exercising his or her rights and freedoms and in fulfilling his or her duties. The first sentence of the first paragraph of Article 45 of the Constitution provides for everyone ’ s right to freedom of expression, that is, the right to disseminate information of any content in any manner. That right is restricted by the prohibition on injuring a person ’ s honour and good name, as laid down in the Constitution (Article 17). The Chamber is of the opinion that in handling the conflict between freedom of expression on the one hand, and honour and good name on the other, regard must be had to the fact that Article 17 of the Constitution, which is formulated as a prohibition, does not completely preclude any interference with a person ’ s honour and good name, but only prohibits defamation thereof (section 1046 of the Obligations Act). In other words, disregarding the aforementioned prohibition would not be in conformity with the Constitution (Article 11 of the Constitution). The second sentence of the first paragraph of Article 45 of the Constitution includes the possibility of restricting the freedom of expression by law in order to protect a person ’ s honour and good name. In the interests of the protection of a person ’ s honour and good name, the following provisions of the Obligations Act may be regarded as restricting the freedom of expression: sections 1045(1)(4), 1046(1), 1047(1), (2) and (4), 1055(1) and (2), and 134(2). The County Court found that injuring the plaintiff ’ s honour was not justified and was therefore unlawful; as there was no discussion of the [news] topic in the comments, the plaintiff was simply insulted in order to degrade him. The Court of Appeal also agreed with that opinion. The Chamber finds that if section 1046 of the Obligations Act is interpreted in conformity with the Constitution, injuring a person ’ s honour is unlawful. The legal assessment by the courts of the twenty comments of a derogatory nature is substantiated. The courts have correctly found that those comments are defamatory since they are of a vulgar nature, degrade human dignity and contain threats. The Chamber does not agree with the opinion of the Court of Appeal that the removal of comments of an unlawful nature interfering with the personality rights of the plaintiff is not an interference with the freedom of expression of the authors of the comments. The Chamber considers that the application of any measure restricting a fundamental right in any manner may be regarded as an interference with the exercise of that fundamental right. Interference by an Internet portal operator with the freedom of expression of persons posting comments is, however, justified by the obligation of the portal operator-entrepreneur to respect the honour and good name of third parties, as arising from the Constitution (Article 17) and the law (section 1046 of the Obligations Act), and to avoid causing them harm (section 1045(1 )( 4) of the Obligations Act). 16. According to the judgment of the Court of Appeal, the contents of the comments were unlawful; they were linguistically inappropriate. Value judgments ... are inappropriate if it is obvious to a sensible reader that their meaning is vulgar and intended to degrade human dignity and ridicule a person. The comments did not contain any information which would have required excessive verification on the initiative of the portal operator. Hence, the defendant ’ s allegation that it was not and should not have been aware of the unlawfulness of the comments is groundless. On account of the obligation arising from law to avoid causing harm, the defendant should have prevented the publication of comments with clearly unlawful content. The defendant did not do so. In accordance with section 1047(3) of the Obligations Act, the disclosure of information or other matters is not deemed to be unlawful if the person who discloses the information or other matters or the person to whom such matters are disclosed has a legitimate interest in the disclosure, and if the person who discloses the information has verified the information or other matters with a thoroughness which corresponds to the gravity of the potential violation. The publication of linguistically inappropriate value judgments injuring another person ’ s honour cannot be justified by relying on the circumstances specified in section 1047(3) of the Obligations Act: such judgments are not derived from any information disclosed but are created and published for the purpose of damaging the honour and good name of the party concerned. Hence, the publication of comments of a clearly unlawful nature was also unlawful. After the disclosure, the defendant failed to remove the comments – the unlawful content of which it should have been aware of – from the portal on its own initiative. In such circumstances, the courts have reasonably found that the defendant ’ s inactivity is unlawful. The defendant is liable for the damage caused to the plaintiff, since the courts have established that the defendant has not proved the absence of culpability [ süü ] (section 1050(1) of the Obligations Act). ” D. Subsequent developments 32. On 1 October 2009 Delfi announced on its Internet portal that persons who had posted offensive comments were not allowed to post a new comment until they had read and accepted the Rules on posting comments. Furthermore, it was announced that Delfi had set up a team of moderators who carried out follow-up moderation of comments posted on the portal. First of all, the moderators reviewed all user notices of inappropriate comments. The compliance of comments with the Rules on posting comments was monitored as well. According to the information published, the number of comments posted by Delfi ’ s readers in August 2009 had been 190,000. Delfi ’ s moderators had removed 15,000 comments (about 8%), mainly consisting of spam or irrelevant comments. The percentage of defamatory comments had been less than 0.5% of the total number of comments. | This was the first case in which the Court had been called upon to examine a complaint about liability for user-generated comments on an Internet news portal. The domestic courts had rejected the portal’s argument that, under |
888 | Internet | I. THE CIRCUMSTANCES OF THE CASE 8. The applicant was born in 1940 and lives in Monaco. 9. On 30 March 2008, the News of the World, a Sunday newspaper owned by News Group Newspapers Limited, published on its front page an article headed “F1 boss has sick Nazi orgy with 5 hookers”. The article opened with the sentence, “Formula 1 motor racing chief Max Mosley is today exposed as a secret sadomasochistic sex pervert”. Several pages inside the newspaper were also devoted to the story, which included still photographs taken from video footage secretly recorded by one of the participants in the sexual activities, who was paid in advance to do so. An edited extract of the video as well as still images were also published on the newspaper ’ s website and reproduced elsewhere on the internet. The print version of the newspaper invited readers to view the video, providing the website address of the newspaper. 10. Later that same day, the applicant ’ s solicitors made a complaint to the News of the World regarding the video footage available on the website. The next day, 31 March 2008, the edited footage was voluntarily removed from the website and an undertaking was given that it would not be shown again without 24 hours ’ notice. Such notice was given by letter dated 3 April 2008 and faxed at 1.19 p. m. that day. 11. The edited video footage was viewed over 1.4 million times over 30 and 31 March 2008. The online version of the article was visited over 400,000 times during the same period. The print version of the News of the World has an average circulation of over three million copies. 12. On 4 April 2008 the applicant commenced legal proceedings against News Group Newspapers Limited claiming damages for breach of confidence and invasion of privacy. Although he did not dispute that the sexual activities had taken place, he contested the characterisation of his activities as being Nazi role-play. He also sought an injunction to restrain the News of the World from making available on its website the edited video footage. 13. On 6 April 2008 a second series of articles on the applicant ’ s sexual activities was published in the News of the World. 14. On 9 April 2008 Mr Justice Eady, in the High Court, refused to grant an injunction because the material was no longer private by reason of its extensive publication in print and on the internet. 15. In assessing the approach to be taken by the court to the granting of an interim injunction, he noted that the following principles should be borne in mind in any case where it was sought to restrain publication on the basis of an alleged infringement of rights guaranteed by Article 8, and where those rights came into conflict with the rights of other persons, and in particular the rights of the media to freedom of expression: “ 28 ... i ) No Convention right has, as such, precedence over another; ii) Where conflict arises between the values safeguarded under Articles 8 and 10, an ‘ intense focus ’ is necessary upon the comparative importance of the specific rights being claimed in the individual case; iii) The Court must take into account the justification for interfering with or restricting each right; iv) So too, the proportionality test must be applied to each. ” 16. He continued: “ 29. Here there is no doubt that the rights of Mr Mosley under Article 8 come into conflict with those of the Respondent company under Article 10. One question which has to be answered is whether, in respect of the information contained in the edited footage, Mr Mosley any longer has a reasonable expectation of privacy, having regard to everything which has happened since the original publication. ” 17. Eady J considered that there was no public interest in publication of the images powerful enough to override the applicant ’ s prima facie right to be protected in respect of the intrusive and demeaning nature of the photographs, observing : “ 30. ... The only reason why these pictures are of interest is because they are mildly salacious and provide an opportunity to have a snigger at the expense of the participants. Insofar as the public was ever entitled to know about Mr Mosley ’ s sexual tastes at all, the matter has already been done to death since the original coverage in the News of the World. There is no legitimate element of public interest which would be served by the additional disclosure of the edited footage, at this stage, on the Respondent ’ s website. ” 18. However, as to the extent of the applicant ’ s reasonable expectation of privacy, Eady J noted that the material had been seen by thousands of people around the world and that it continued to be available. He went on : “ 33. ... The Court must always be conscious of the practical realities and limitations as to what can be achieved ... Nevertheless, a point may be reached where the information sought to be restricted, by an order of the Court, is so widely and generally accessible ‘ in the public domain ’ that such an injunction would make no practical difference. 34. As Mr Millar [for News Group Newspapers Limited ] has pointed out, if someone wishes to search on the Internet for the content of the edited footage, there are various ways to access it notwithstanding any order the Court may choose to make imposing limits on the content of the News of the World website. The Court should guard against slipping into playing the role of King Canute. Even though an order may be desirable for the protection of privacy, and may be made in accordance with the principles currently being applied by the courts, there may come a point where it would simply serve no useful purpose and would merely be characterised, in the traditional terminology, as a brutum fulmen. It is inappropriate for the Court to make vain gestures .” 19. He concluded that the material was so widely accessible that an order in the terms sought would make very little practical difference, noting: “ 36. ... The dam has effectively burst. I have, with some reluctance, come to the conclusion that although this material is intrusive and demeaning, and despite the fact that there is no legitimate public interest in its further publication, the granting of an order against this Respondent at the present juncture would merely be a futile gesture. Anyone who wishes to access the footage can easily do so, and there is no point in barring the News of the World from showing what is already available. ” 20. The edited video footage was restored to the News of the World website shortly afterwards. 21. In the course of the subsequent privacy proceedings before the High Court, the court heard evidence from the editor of the News of the World. As to the reasons for providing no advance warning to the applicant of the imminent publication of the story, the following exchange took place: “Q: Your third reason was the risk of an interim injunction, and that was the real reason, was it not? A: That was a major concern, yes. Q: You were worried that the court might grant an injunction. A: It was a consideration, yes. ... Q: So you did recognise that there was a real risk that a court would take the view, on an interim basis, that this intrusion on privacy was not justified? A: It is a risk all newspapers are faced with these days. Q: What is the matter with letting the court make the decision? Is that not the way democratic societies work; that one person says it is not an intrusion of privacy and the other says it is? ... There is nothing wrong with an impartial judge looking at it is there? A: No. It happens a lot. Q: But you were not prepared to risk that on this occasion? A: On this occasion.” 22. On 24 July 2008 judgment was handed down in the privacy proceedings. 23. Regarding the allegations in the articles that there was a Nazi theme, Eady J noted that once the material had been obtained, it was not properly checked for Nazi content and that the German was not even translated. Instead, those concerned were simply content to rely on general impressions, which Eady J considered to be “ hardly satisfactory ” having regard to the devastating impact the publication would have on all those involved and to the gravity of the allegations, especially that of mocking the treatment given to concentration camp inmates. He was prepared to accept that the journalist responsible for the story and the editor thought there was a Nazi element, not least because that was what they wanted to believe. He concluded: “ 170. The belief was not arrived at, however, by rational analysis of the material before them. Rather, it was a precipitate conclusion that was reached ‘ in the round ’, as Mr Thurlbeck [the journalist] put it. The countervailing factors, in particular the absence of any specifically Nazi indicia, were not considered. When Mr Myler [the editor] was taken at length through dozens of photographs, some of which he had seen prior to publication, he had to admit in the witness box that there were no Nazi indicia and he could, of course, point to nothing which would justify the suggestion of ‘ mocking ’ concentration camp victims. That conclusion could, and should, have been reached before publication. I consider that this willingness to believe in the Nazi element and the mocking of Holocaust victims was not based on enquiries or analysis consistent with ‘ responsible journalism ’ ... [T] he judgment was made in a manner that could be characterised, at least, as ‘ casual ’ and ‘ cavalier ’ .” 24. Eady J went on to consider the newspaper ’ s assessment, prior to publication, of the lawfulness of publishing the articles. He observed that, in the context of privacy, there was a good deal of scope for differing assessments to be made on issues such as whether there was a reasonable expectation of privacy or a genuine public interest to justify intrusion. He considered that he was not in a position to accept the applicant ’ s submission that any of the relevant individuals must have known at the time that the publication would be unlawful in the sense that no public interest defence could succeed, nor could he conclude that they were genuinely indifferent to whether there was a public interest defence. While, he said, they may not have given it close analysis and one could no doubt criticise the quality of the journalism which led to the coverage actually given, that was not the same as genuine indifference to the lawfulness of this conduct. He noted: “ 209. It is also clear that one of the main reasons for keeping the story ‘ under wraps ’ until the last possible moment was to avoid the possibility of an interlocutory injunction. That would avoid delaying publication and, in a privacy context, would generally mean that a potential claimant would not trouble to institute any legal proceedings at all. Once the cat is out of the bag, and the intrusive publication has occurred, most people would think there was little to gain. Even so, it would not be right to equate such tactics with deliberately or recklessly committing a wrong.” 25. Eady J concluded that the newspaper articles and images constituted a breach of the applicant ’ s right to privacy. He found that there were no Nazi connotations in the applicant ’ s sexual activities and that there was therefore no public interest or justification in the publication of the article about his personal life and the accompanying images. 26. On the question of damages, Eady J declined to award exemplary damages and limited the damages available to a compensatory award. He considered it questionable whether deterrence should have a distinct, as opposed to a merely incidental, role to play in the award of compensatory damages, noting that it was a notion more naturally associated with punishment. He further observed that if damages were paid to an individual for the purpose of deterring the defendant it would naturally be seen as an undeserved windfall. He added that if damages for deterrence were to have any prospect of success it would be necessary to take into account the means of the relevant defendant. Any award against the News of the World would have to be so large that it would fail the test of proportionality when seen as fulfilling a compensatory function and would risk having a “chilling effect” on freedom of expression. 27. Eady J recognised that the sum awarded would not constitute adequate redress, noting: “ 230. ... I have already emphasised that injury to reputation is not a directly relevant factor, but it is also to be remembered that libel damages can achieve one objective that is impossible in privacy cases. Whereas reputation can be vindicated by an award of damages, in the sense that the claimant can be restored to the esteem in which he was previously held, that is not possible where embarrassing personal information has been released for general publication. As the media are well aware, once privacy has been infringed, the damage is done and the embarrassment is only augmented by pursuing a court action. Claimants with the degree of resolve (and financial resources) of Mr Max Mosley are likely to be few and far between. Thus, if journalists successfully avoid the grant of an interlocutory injunction, they can usually relax in the knowledge that intrusive coverage of someone ’ s sex life will carry no adverse consequences for them and (as Mr Thurlbeck put it in his 2 April email) that the news agenda will move on. 231. Notwithstanding all this, it has to be accepted that an infringement of privacy cannot ever be effectively compensated by a monetary award. Judges cannot achieve what is, in the nature of things, impossible. That unpalatable fact cannot be mitigated by simply adding a few noughts to the number first thought of. Accordingly, it seems to me that the only realistic course is to select a figure which marks the fact that an unlawful intrusion has taken place while affording some degree of solatium to the injured party. That is all that can be done in circumstances where the traditional object of restitutio is not available. At the same time, the figure selected should not be such that it could be interpreted as minimising the scale of the wrong done or the damage it has caused.” 28. The applicant was awarded GBP 60,000 in damages and recovered approximately GBP 420,000 in costs. The judge noted that the applicant was hardly exaggerating when he said that his life was ruined. A final injunction was granted against the newspaper. ii. editors and journalists should be rendered liable for invasions of privacy by their publications, as they are for libel; ... iv. economic penalties should be envisaged for publishing groups which systematically invade people ’ s privacy; ... vii. provision should be made for anyone who knows that information or images relating to his or her private life are about to be disseminated to initiate emergency judicial proceedings, such as summary applications for an interim order or an injunction postponing the dissemination of the information, subject to an assessment by the court as to the merits of the claim of an invasion of privacy; viii. the media should be encouraged to create their own guidelines for publication and to set up an institute with which an individual can lodge complaints of invasion of privacy and demand that a rectification be published. ” 59. On 3 October 2008 Resolution 1636 (2008) on indicators for media in a democracy was adopted by the Parliamentary Assembly. It recalled the importance of freedom of expression of the press in a democracy and called on member States to assess their national media legislation bearing in mind the basic principle that there should be a system of media self-regulation including a right of reply and correction or voluntary apologies by journalists and that journalists should set up their own professional codes of conduct and that they should be applied. 2. The Committee of Ministers 60. At the Sixth European Ministerial Conference on Mass Media Policy in Cracow, 15-16 June 2000, the participating Ministers adopted a declaration on “A media policy for tomorrow”. In the declaration, the representatives of the Contracting States agreed on a programme of action at pan-European level, to be implemented by the Steering Committee on Mass Media (“CDMM”). The programme of action included the following provisions: “ I. Activities relating to the balance between freedom of expression and information and other rights and legitimate interests The CDMM should: - step up its work on the balance between freedom of expression and information and the right to privacy; - complete the work on the disclosure of information and the expression of opinions about political figures and public officials, the disclosure of information in the public interest, as well as media reporting on legal proceedings, so as to define common orientations for the whole of Europe as speedily as possible; - examine the problems caused by the dissemination of material casting doubt on individuals ’ dignity and integrity, even in the traditional media; - examine the implications of the on-line dissemination of information by individuals or other sources which may not be bound by professional journalistic ethics or codes of conduct .” 61. Following the adoption of the programme of action, the CDMM established a Group of Specialists on freedom of expression and other fundamental rights (“MM-S-FR”). The MM-S-FR prepared a draft declaration of the Committee of Ministers on freedom of expression and the right to respect for private life which was reviewed by the CDMM at its meetings of 10 July 2003 and 21 January 2004. However, the CCDM did not invite the Committee of Ministers to adopt the declaration. B. Law and practice in Council of Europe member States 62. According to the information provided by the parties or otherwise available to the Court, there is no pre-notification requirement as such in any of the legal systems of the Contracting Parties. However, some member States require the subject ’ s consent to publication of material relating to private life, in many cases subject to some form of “public interest” exception. Thus the failure to obtain consent may have legal consequences in any subsequent civil proceedings commenced by the subject of the publication. 63. A number of member States have adopted codes of practice, generally not binding, which also contain some form of consent requirement. C. Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“the EC Directive ” ) 64. The EC Directive was adopted in order to ensure adequate protection for personal data. It applies to the 27 Member States of the European Union. It was transposed in the United Kingdom through the Data Protection Act 1998 (see paragraphs 42 - 45 above). There is no reference in the EC Directive to the need to provide for a pre-notification requirement in privacy cases. | This case concerned the publication of articles, images and video footage in the News of the World newspaper and on its website which disclosed details of Max Mosley’s sexual activities. The applicant complained about the authorities’ failure to impose a legal duty on the newspaper to notify him in advance of further publication of the material so that he could seek an interim injunction. |
990 | Cases in which the Court has found a violation of Article 18 in conjunction with Article 5 of the Convention | THE CIRCUMSTANCES OF THE CASE 5. The applicant was born in 1976 and lives in Baku. The applicant ’ s background and her employment with Radio Free Europe/Radio Liberty 6. The applicant is a well-known investigative journalist and civil society activist. She is known for her strong criticism of the Azerbaijani government and was involved earlier in her career in numerous journalistic investigations relating, in particular, to cases of alleged corruption and business activities of the members of the Government and their families. 7. In November 2007 the applicant started to work as a freelance journalist for the Baku “ bureau ” of the Azerbaijani service (“ Azadliq Radio”) of Radio Free Europe/Radio Liberty (“ RFE/RL ”). RFE/RL is a non-profit international broadcasting corporation with its headquarters in Prague and several local bureaus across its broadcast region, including one in Baku. It is funded by the U.S. Congress through the United States Agency for Global Media. 8. On 1 July 2008 the applicant was recruited to the Baku bureau based on a fixed-term employment contract. The relevant parts of that contract, submitted by her, read as follows: “[J.C.], (hereafter “ the employer”) representing the management of the office of Radio Free Europe/Radio Liberty in Azerbaijan located at [ address of the office] and [the applicant] (“ the employee”) signed the employment contract on the terms below. ... Article 3: Duties of the Employee 3.1. The employee shall work as Acting Head of Bureau ... ... Article 5: Subordination 5.1. The employee shall be subordinate to the director of the Azerbaijani Service in Prague and all decisions made by the director within his or her mandate shall be binding for the employee ... ” 9. On 1 July 2009 the applicant was appointed as head of the bureau and her employment contract was further extended. The relevant parts of the “Amendment to the employment contract ” submitted by the applicant read as follows: “[E.P.], (hereafter “ the employer”) representing the management of the office of Radio Free Europe/Radio Liberty in Azerbaijan located at [address of the office] and [the applicant] (“employee”) signed the Amendment to the employment contract on the terms below. “ Article 3: Duties of the Employee 3.1. The employee shall work as Head of Bureau and ... perform the duties stipulated in the job description appended to the contract (appendix 1) as well as the duties assigned by the management ... APPENDIX 1 JOB DESCRIPTION ... General overview of the position: The Head of Bureau shall be subordinate to the director of the Service. He or she shall be responsible for the quality of all products produced by bureau employees and staff and for management of the team with a view to expanding the coverage area. The Head of Bureau shall receive all instructions related to his or her area of responsibility from the director of the Service. DUTIES ... In the area of team management 10. On 1 October 2010 the applicant ’ s employment contract with RFE/RL was terminated and from then until December 2014 she worked for the latter on a freelance basis. Events preceding the applicant ’ s arrest 11. Between 2010 and 2012 the applicant wrote a number of investigative articles which were published on the website of RFE/RL and elsewhere concerning the alleged involvement of President Aliyev ’ s family in illegal business activities. During this period, the applicant published various articles, including most notably: - “ Aliyev ’ s Azerbaijani empire grows, as daughter joins the game”; - “Azerbaijani President ’ s daughters tied to fast-rising telecoms firm”; -. “Azerbaijani Government awarded goldfield rights to President ’ s family”; - “ President ’ s family benefits from Eurovision Hall”. 12. According to the applicant, as a result of her journalistic investigations and published articles, she was constantly threatened and harassed. In particular, in 2012 intimate videos unlawfully recorded by a camera hidden in her bedroom were disseminated on the internet in order to silence her as a journalist ( for further details concerning these events see Khadija Ismayilova v. Azerbaijan, nos. 65286/13 and 57270/14, 10 January 2019 ). 13. In 2013 and 2014 the Prosecutor General ’ s Office instituted criminal proceedings concerning alleged irregularities in the financial activities of a number of non-governmental organisations. Several NGO activists and human rights defenders were later arrested in the context of those proceedings and charged with criminal offences such as illegal entrepreneurship, embezzlement, tax evasion and abuse of power ( see Aliyev v. Azerbaijan, nos. 68762/14 and 71200/14, 20 September 2018; Mammadli v. Azerbaijan, no. 47145/14, 19 April 2018; and Rasul Jafarov v. Azerbaijan, no. 69981/14, 17 March 2016). 14. During that period numerous articles about the applicant and other civil society activists and human rights defenders were published in the State media and in the media allegedly close to the government. In those articles, the applicant and other activists were described as “spies for foreign interests” and “traitors” (for examples of some of these comments, see Rasul Jafarov, cited above, §§ 36-4 0 ). 15. Two days prior to the applicant ’ s arrest, on 3 December 2014, State-owned news agencies published a sixty-page manifesto written in Russian by R.M., the then head of the Presidential Administration, entitled “The World Order of Double Standards and Modern Azerbaijan” (“ Миропорядок двойных стандартов и современный Азербайджан ”). The article, among other things, accused various NGOs operating in the country of being the “fifth column of imperialism”. As regards the applicant, the relevant parts of the article read as follows: “ ... [The applicant] ... zealously broadcasts anti-Azerbaijani programs, makes statements of an obscene nature, openly demonstrates a hostile attitude towards well ‑ known Azerbaijani public figures and spreads insulting lies. Obviously, such a challenge to society is appreciated by her foreign patrons, but not by patriots of the motherland. Furthermore, the position she holds has nothing to do with the journalistic profession. The public strongly believe that the employees of “ Azadliq ” radio were very slippery in their ways. There is no need to prove that the dissemination of fabricated information is tantamount to working for the foreign secret services. This is treason. “If the symbol of democracy is Khadija Ismayilova, then it is awful to imagine what future awaits society” this is the opinion of journalists and ordinary people with a normal mindset ... ” Institution of criminal proceedings against the applicantThe applicant ’ s arrest and remand in custody on a charge of incitement to suicide The applicant ’ s arrest and remand in custody on a charge of incitement to suicide The applicant ’ s arrest and remand in custody on a charge of incitement to suicide 16. On 20 October 2014 T.M., a former colleague of the applicant at Azadliq Radio, attempted to commit suicide. 17. On 24 October 2014 the Prosecutor General ’ s Office instituted criminal proceedings under Article 125 (incitement to suicide) of the Criminal Code. 18. On 25 November 2014 T.M. lodged a complaint with the Prosecutor General ’ s Office accusing the applicant of inciting him to commit suicide. 19. According to the applicant, on 26 November 2014 T.M. underwent an expert medical examination which found that he was suffering from “affective personality disorder” with depressive episodes and had attempted to commit suicide on three occasions in the past. 20. On 5 December 2014 the applicant was questioned at the Prosecutor General ’ s Office in the presence of her lawyer and T.M. During questioning the applicant denied any wrongdoing and stated that in fact she had had no contact with T.M. since 9 March 2014. 21. After questioning the applicant was officially charged with the criminal offence of incitement to suicide under Article 125 of the Criminal Code. The relevant parts of the decision to charge her read as follows: “ ... [The applicant] is accused of regularly humiliating the dignity of the victim, who was dependent on her in service -related and other ways and of driving him to attempt suicide by using threats against him. Notably, [the applicant], while working as a freelance journalist in public and non ‑ governmental organisations, and as a leading journalist in the Baku office of “ Azadliq Radio”, met the journalist, [T.M.], who worked in the same office [.] As they had an intimate relationship, [the applicant], by using her authority in the organisations she had worked, directly helped [T.M.] in his job [ and helped him ] to establish connections in those organisations, to improve his living conditions and financial situation[ .] However, on 8 March 2014, after discovering that [T.M.] had entered in close relationship with another woman whom he intended to marry, [the applicant], by using her authority in the said organisations, routinely humiliated his dignity on social networks and among their acquaintances[ .] By her actions, which aimed at restricting [T.M.] ’ s journalistic activity, [the applicant] managed to make [T.M.] lose his job, worsen his financial situation and place him in a position of dependence on her[. ] [She] threatened him [that] if their intimate relationship was not rekindled, [she would] hinder his work in his field, continue to spread pejorative information about him and [ would not] forgive [the fact that he preferred to] have a relationship with another woman [ .] Although [T.M.] informed [the applicant] that if she did not back off, he would kill himself, [the applicant] ignored [this] and continued her actions[ .] As a result, at around 5 p.m. on 20 October 2014 [T.M.], after deciding to kill himself, attempted to commit suicide in the National Park by ingesting “Zinc oxide”, a drug used on rodents [. ] However, [after] being found unconscious by [some] citizens, he was transferred by ambulance to the Toxicology Unit of the Clinical Medical Centre where his life was saved as a result of medical treatment. Thus, [the applicant ] committed a criminal offence provided by Article 125 of the Criminal Code the Republic of Azerbaijan ... ” 22. On the same day the Sabail District Court, in response to a request by the prosecutor, remanded the applicant in custody for a period of two months. The court justified the detention as follows: “ In accordance with the presumption of innocence, the court, having examined the request of the investigating authority, the request of the prosecutor supervising the preliminary investigation and the material of the criminal case, taking into account that the acts imputed to the accused fall within the category of less serious crimes (“ təqsirləndirilən şəxsə istinad edilən əməllərin az ağır cinayətlər kategoriyasına aid olmasını ”), and [taking into account] the nature of these acts and the circumstances of their commission, as well as [taking into account] that the risks that [applicant might abscond, obstruct the proceedings or reoffend] are real and well- founded, considers that the preventive measure of remand in custody must be applied with respect to [the applicant].” 23. On 8 December 2014 the applicant appealed against this decision, claiming that her detention was unlawful and unjustified. She complained, in particular, that the charges brought against her were not supported by any evidence, that there was no reasonable suspicion that she had committed a criminal offence and that the first-instance court had failed to verify the existence of such a suspicion. In this context, she referred to the report concerning T.M. ’ s medical examination of 28 November 2014, which stated that T.M. had been suffering from “affective personality disorder” with depressive episodes for the last one or two years and had attempted to commit suicide on three occasions. 24. On 11 December 2014 the Baku Court of Appeal dismissed the applicant ’ s appeal and upheld the decision of 5 December 2014 using identical wording. The above -mentioned complaints were left unanswered by the appellate court. 25. On 24 December 2014 the applicant lodged an application with the Sabail District Court asking for her pre-trial detention to be replaced by house arrest or her release on bail. She claimed, in particular, that there was no evidence that she had been involved in any way in T.M. ’ s attempted suicide and that her detention was not justified. She further noted that there was no reason for her continued detention as she had a permanent place of residence and there was no risk of her absconding from or obstructing the investigation. 26. On 26 December 2014 the Sabail District Court dismissed the application, finding that there was a risk of her absconding from and obstructing the investigation. 27. On 30 December 2014 the Baku Court of Appeal upheld the Sabail District Court ’ s decision of 26 December 2014. Public statements made by T.M. following the applicant ’ s arrest 28. On 27 December 2014 T.M. published a number of posts on his Facebook profile announcing his intention to withdraw his complaint against the applicant. He was then immediately contacted by journalists from Meydan TV, an online news portal, to whom he confirmed his intention. He also stated that on the same day he had tried to travel to Moscow but the authorities had not allowed him to leave the country. He had then found out that on 26 November 2014, a day after he had lodged a formal complaint against the applicant, the authorities had imposed a travel ban on him. T.M. ’ s Facebook posts were repeated by Meydan TV on its website. The posts read as follows: “I am asking for help from independent lawyers. I am withdrawing my complaint lodged against [the applicant]. Someone help me urgently. There is a risk of arrest.” 29. About three minutes later, T.M. published the following post: “I am not afraid of [being] arrested, it ’ s just that I could be arrested without having time to withdraw my complaint. I am announcing that I want to withdraw my complaint lodged against [the applicant] and I will do it.” 30. About an hour later, T.M. wrote the following: “I have been arrested!!!” 31. On 8 April 2015 T.M. stated in an interview with Azadliq Radio that he had sent a letter to the Prosecutor General ’ s Office stating his intention to withdraw his complaint against the applicant. He further stated that the applicant had had no involvement in his attempted suicide and that he had been suffering from psychological problems at that time. He pointed out that he had been previously unable to withdraw his complaint for certain reasons on which he did not wish to elaborate further. He had also asked the Prosecutor General ’ s Office to lift the travel ban imposed on him. 32. On 3 May 2015 a personal video statement by T.M., which had apparently been recorded on 7 April 2015, was published on YouTube. In it he complained that he had been subjected to coercion by the authorities, and placed in unacknowledged detention. He stated, in particular, the following: “I would like to state that on 20 October 2014 I attempted to commit suicide by ingesting rat poison ... I was admitted to the Toxicology [ Unit], where the poison in my blood was removed. The Baku prosecutor ’ s office, by using this opportunity, stated that I had done it purely because of [the applicant] and I was forced by the first deputy prosecutor of Baku, [ A.A. ], and the investigator, [ V.S. ], to make a formal written complaint [against the applicant] ... I was also stopped by officers from the MNS [Ministry of National Security] near the “28 May” metro station [who] threatened ... that if I did not agree, the video footage made inside my apartment would be made public ... Thus, I was obliged to make a formal written complaint ... On 27 December 2014 I was leaving Azerbaijan for Moscow and I was going to record and publish this video afterwards ... However, it happened that they banned me from leaving the country I had made the formal written complaint [against the applicant] on 2 5 November and on 26 November they imposed a travel ban on me. Despite the travel ban, I tried to leave the country, but it did not work out. On 27 December I was arrested in the town of Goychay [T.M. ’ s hometown] by police officers ... and was taken to the Goychay police station and from there two police officers and two officers from [MNS] took me to Baku. Until 14 February they kept me in my rented apartment at [location of the apartment ] like under house arrest, they hacked my Facebook [ account ], my email address ... ” 33. T.M. further alleged in his statement that on 14 February 2014 officers from the MNS had subjected him to ill-treatment and had forcibly placed him in a psychiatric facility. He had allegedly been released on 28 February 2014 and had returned to his hometown, from where he had written to the Prosecutor General about the withdrawal of his complaint against the applicant and had also asked for the travel ban imposed on him to be cancelled. Extension of the applicant ’ s pre-trial detention and additional charges brought against her 34. On 27 January 2015 the Sabail District Court, in response to a request by the prosecutor, extended the applicant ’ s pre-trial detention until 24 March 2015 based on the same grounds. The applicant appealed, reiterating her complaints. 35. On 6 February 2015 the Baku Court of Appeal upheld the decision of 27 January 2015, leaving the applicant ’ s complaints without consideration. 36. On 13 February 2015 the applicant was charged with additional criminal offences under Articles 179.3.2 (high-level embezzlement), 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (aggravated abuse of power) of the Criminal Code. The charges against the applicant mainly concerned her activity as head of the Baku bureau of Azadliq Radio in the period between 1 July 2008 and 1 October 2010. She was accused of the following: (i) Misappropriating State property and abusing her power by illegally employing several individuals to work at the Baku bureau of Azadliq Radio on the basis of service contracts under the Civil Code ( which were subject to a simplified low tax rate of 4% ). In breach of the requirements of the Labour Code, the applicant had not concluded employment contracts with those people ( which would have been subject to personal income tax at a rate of 14% ) and had therefore inflicted material damage on the State in the amount of 17,992.60 Azerbaijani new manats (AZN), which represented a difference of 10% between the above rates; (ii) In her capacity as head of the Baku bureau of Azadliq Radio, which was a non-commercial organisation, engaging in illegal entrepreneurship by continuing the radio broadcasting activities of the Baku bureau despite the fact that the broadcasting licence given to the bureau by the National Television and Radio Council of the Republic of Azerbaijan had expired on 1 January 2008 and had not been renewed thereafter. Furthermore, since 1 October 2010 she had been working for Azadliq Radio without being accredited with the Ministry of Foreign Affairs of the Republic of Azerbaijan as a representative of the foreign media. Consequently, in the period between 1 July 2008 and 1 December 2014 the applicant had acquired profit through illegal entrepreneurship activity by receiving and paying money to herself and other employees of the Baku bureau “ disguised as salaries and service fees” in the total amount of AZN 335, 880. 5 4; (iii) While head of the Baku bureau of Azadliq Radio in the period between 1 July 2008 and 1 October 2010, avoiding payment of profit tax in the amount of AZN 45,145.63. 37. On 6 March 2015 the Nasimi District Court extended the applicant ’ s pre-trial detention until 24 May 2015. The detention was justified on the grounds that, given the complexity of the case, a number of investigative steps needed to be carried out and more time was needed to complete the investigation. The applicant appealed, claiming that the first-instance court had failed to justify the extension of her pre-trial detention, T.M. had withdrawn his complaint against her and there was no evidence whatsoever that she had committed any criminal offence, including those related to her activities at Azadliq Radio. 38. On 12 March 2015 the Baku Court of Appeal dismissed the appeal and upheld the first-instance court ’ s decision, leaving the applicant ’ s complaints without consideration. 39. On 14 May 2015 the Nasimi District Court extended the applicant ’ s pre-trial detention until 24 August 2015. The decision was identical in its wording to the court ’ s decision of 6 March 2015. 40. On 21 May 2015 the Baku Court of Appeal dismissed an appeal by the applicant against the Nasimi District Court ’ s decision of 14 May 2015, and extended her pre-trial detention until 22 August 2015. 41. Meanwhile, on 14 May 2014 the applicant lodged an application with the Nasimi District Court, asking for her pre-trial detention to be replaced by house arrest or her release on bail. The applicant reiterated her complaints that there was no reasonable suspicion of her committing a crime and that her continued detention was unjustified. In addition, she stated that she had been recognised as a prisoner of conscience by an international NGO, which showed that she had been arrested and prosecuted for her political and human rights activities, in breach of Article 18 of the Convention. 42. On 9 July 2015 the Prosecutor General ’ s Office drew up a bill of indictment and the case went to trial. 43. On 24 July 2015 the Baku Court for Serious Crimes held a preliminary hearing and ruled that the applicant ’ s “preventive measure of remand in custody should remain unchanged.” The applicant ’ s criminal conviction and subsequent release from detention 44. On 1 September 2015 the Baku Court for Serious Crimes found the applicant guilty under Articles 179.3.2 (high-level embezzlement), 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (aggravated abuse of power) of the Criminal Code and sentenced her to seven and a half years ’ imprisonment and a ban on holding managerial and financial posts in public and local self-government bodies for a period of three years. As regards the charge under Article 125 (incitement to suicide) of the Criminal Code, the court acquitted her for lack of evidence. 45. On 25 November 2015 the Baku Court of Appeal upheld the judgment of 1 September 2015. 46. On 25 May 2016 the Supreme Court quashed the part of the judgment of 25 November 2015 related to the applicant ’ s conviction under Articles 179 and 308 of the Criminal Code for lack of the constituent elements of the crime and reduced her sentence to three and a half years ’ imprisonment suspended on probation. She was released from detention. Statement of 6 December 2014 by the Prosecutor General ’ s Office 47. On 6 December 2014, following the applicant ’ s arrest, the Prosecutor General ’ s Office made a public statement entitled “Illegal acts of Khadija Ismayilova have been unmasked ” (“ Xədicə İsmayılovanın qanunazidd əməlləri ifşa edilmişdir ”). It indicated, in particular: “ The prosecutor ’ s office of the Sabail district has instituted criminal proceedings under Article 125 (incitement to suicide) of the Criminal Code into the fact that on 20 October 2014 [T. M. ], a reporter from “ Azadliq Radio” and “ Meydan TV, attempted to commit suicide by ingesting “Zinc oxide” ..., [T. M. ] applied to the General Prosecutor ’ s office and asked to take the appropriate measures against [the applicant] on account of her ... driving him to attempt suicide. The investigation has established that [T. M. ] since February 2013 started to work in “ Azadliq Radio” ... where he met [the applicant] and get involved in close relationship with her ... The investigation has also established that on 1 May 2014 [T. M. ] attempted to commit suicide as a result of threats and pressure used by [the applicant ] ... [The applicant] was charged as an accused in the criminal case on a reasonable suspicion that [the applicant] continued to perform illegal acts against [T.M.] despite the fact that [T.M.] warned her that if she did not leave him alone, he would kill himself ... ” RELEVANT DOMESTIC LAW AND PRACTICE 48. A summary of domestic law, including most of the relevant provisions of the Criminal Code and the Code of Criminal Procedure, as well as the relevant international reports, may be found in Rasul Jafarov (cited above, §§ 50-84). Further information on the domestic law relevant to the present case is summarised below. Criminal Code 49. The relevant provisions of the Criminal Code provided as follows at the material time: Article 125. Incitement to violence “Incitement of a victim who is dependent on the accused for material, service-related or other reasons to commit or attempt suicide by means of cruel treatment, systematic humiliation of his dignity, use of threats is punishable by deprivation of liberty for a period of three to seven years .” Code of Criminal Procedure 50. The relevant provisions of the Code of Criminal Procedure (“ CCrP ”) provided as follows at the material time: Article 37. Types of criminal prosecution “ 37.1. Depending on the nature and degree of severity of the offence, a criminal prosecution shall be carried out in the form of private, semi-public or public prosecution in accordance with the provisions of this Code. 37.2. A private criminal prosecution may only be carried out on the basis a complaint by the victim with respect to offences under Articles 147, 148, 165.1 and 166.1 of the Criminal Code of the Republic of Azerbaijan ... 37.3. A semi-public criminal prosecution shall be carried out on the basis of a complaint by the victim or by the prosecutor ... with respect to offences under Articles 127, 128, 129.2, 130.2, 131.1, 133, 134, 142.1, 149.1, 150.1, 151, 156-158, 163, 169 ‑ 1, 175-177.1, 178.1, 179.1, 184.1, 186.1, 187.1, 190.1, 197 and 201.1 of the Criminal Code of the Republic of Azerbaijan. ... 37.6. A public criminal prosecution shall be carried out with respect to other offences not covered by Articles 37.2 and 37.3 of this Code. ” Code of Administrative Offences 2000 (“the old CAO”) 51. The relevant provisions of the old CAO (repealed and replaced by a new Code, which entered into force on 1 March 2016 ) provided as follows at the material time: Article 187-2. Breach of rules and conditions of the special authorisation (licence) in the field of television and radio broadcasting “ A breach of rules and conditions of the special authorisation (licence) in the field of television and radio broadcasting shall be punishable with respect to officials by a fine in the amount of [AZN 300 to 500], and with respect to legal entities by a fine in the amount of [AZN 1,000 to 2,000 ].” | This case concerned the complaint on the applicant, who worked for the Baku bureau of Azadliq Radio, the Azerbaijani service of the US-funded radio station Radio Free Europe/Radio Liberty, as an employee, manager or freelancer, that she had been arrested and detained without a reasonable suspicion of an offence and her allegations that those acts were aimed at punishing her for her work as a journalist who was critical of the Government. |
Subsets and Splits